esa-1973

Endangered Species Act of 1973

[Color coded section format: Sec.2,3,4.. (a,b,c...) (1,2,3...) (A,B,C...) (i,ii,iii...) (I,II,III...)]

ESA SECTION HEADINGS

Sec 2 Findings, purposes, and policy

Sec. 3. Definitions

Sec 4. Determination of endangered species and threatened species

Sec 5. Land acquisition

Sec. 6. Cooperation with the States

Sec. 7. Interagency cooperation

Sec. 8 International cooperation

Sec 8A. Convention implementation

Sec. 9. Prohibited acts

Sec. 10. Exceptions

See 11 Penalties and enforcement

See 12 Endangered plants

Sec. 13. Conforming amendments

Sec. 14. Repealer

Sec 15 Authorization of appropriations

Sec 16. Effective date

Sec. 17. Marine Mammal Protection Act of 1972

Sec. 18. Annual cost analysis by the Fish and Wildlife Service

FINDINGS, PURPOSES, AND POLICY

SEC. 2.

(a) FINDINGS.-The Congress finds and declares that-

(1) various species of fish, wildlife, and plants in the United States have been rendered

extinct as a consequence of economic growth and development untempered by adequate

concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they

are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational,

historical, recreational, and scientific value to the Nation and its people;

(4) the United States has pledged itself as a sovereign state in the international

community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to-

(A) migratory bird treaties with Canada and Mexico;

(B) the Migratory and Endangered Bird Treaty with Japan;

Hemisphere;

(D) the International Convention for the Northwest Atlantic Fisheries;

(E) the International Convention for the High Seas Fisheries of the North Pacific Ocean;

(F) the Convention on International Trade in Endangered Species of Wild Fauna and

Flora; and

(G) other international agreements; and

(5) encouraging the States and other interested parties, through Federal financial

assistance and a system of incentives, to develop and maintain conservation programs

which meet national and international standards is a key to meeting the Nation's

international commitments and to better safeguarding, for the benefit of all citizens, the

Nation's heritage in fish, wildlife, and plants.

(b) PURPOSES.-The purposes of this Act are to provide a means whereby the ecosystems

upon which endangered species and threatened species depend may be conserved, to

provide a program for the conservation of such endangered species and threatened species,

and to take such steps as may be appropriate to achieve the purposes of the treaties and

conventions set forth in subsection (a) of this section.

(1) It Is further declared to be the policy of Congress that all Federal departments and

agencies shall seek to conserve endangered species and threatened species and shall utilize

their authorities in furtherance of the purposes of this Act.

(2) It is further declared to be the policy of Congress that Federal agencies shall

cooperate with State and local agencies to resolve water resource issues in concert with

conservation of endangered species.

DEFINITIONS

SEC. 3.

For the purposes of this Act-

(1) The term "alternative courses of action" means all alternatives and thus is not limited

to original project objectives and agency jurisdiction.

(2) The term "commercial activity" means all activities of industry and trade, including,

but not limited to, the buying or selling of commodities and activities conducted for the

purpose of facilitating such buying and selling: Provided, however, that it does not include

exhibitions of commodities by museums or similar cultural or historical organizations.

(3) The terms "conserve," "conserving," and "conservation" mean to use and the use of

all methods and procedures which are necessary to bring any endangered species or

threatened species to the point at which the measures provided pursuant to this Act are

no longer necessary. Such methods and procedures include, but are not limited to, all

activities associated with scientific resources management such as research, census, law

enforcement, habitat acquisition and maintenance, propagation, live trapping, and trans-

plantation, and, in the extraordinary case where population pressures within a given

ecosystem cannot be otherwise relieved, may include regulated taking.

(4) The term "Convention" means the Convention on International Trade in

Endangered Species of Wild Fauna and Flora, signed on March 3, 1973, and the

appendices thereto.

(5)(A) The term "critical habitat" for a threatened or endangered species means-

(i) the specific areas within the geographical area occupied by the species, at the time

it is listed in accordance with the provisions of section 4 of this Act, on which are found

those physical or biological features (I) essential to the conservation of the species and (II)

which may require special management considerations or protection; and

(ii) specific areas outside the geographical area occupied by the species at the time it is

listed in accordance with the provisions of section 4 of this Act, upon a determination by

the Secretary that such areas are essential for the conservation of the species.

(B) Critical habitat may be established for those species now listed as threatened or

endangered species for which no critical habitat has heretofore been established as set forth

in subparagraph (A) of this paragraph.

include the entire geographical area which can be occupied by the threatened or endangered

species.

(6) The term "endangered species" means any species which is in danger of extinction

throughout all or a significant portion of its range other than a species of the Class Insecta

determined by the Secretary to constitute a pest whose protection under the provisions of

this Act would present an overwhelming and overriding risk to man.

(7) The term "Federal agency" means any department, agency, or instrumentality of the

United States.

(8) The term "fish or wildlife" means any member of the animal kingdom, including

without limitation any mammal, fish, bird (including any migratory, nonmigratory, or

endangered bird for which protection is also afforded by treaty or other international

agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and

includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.

(9) The term "foreign commerce" includes, among other things, any transaction-

(A) between persons within one foreign country;

(B) between persons in two or more foreign countries;

(D) between persons within the United States, where the fish and wildlife in question are

moving in any country or countries outside the United States.

(10) The term "import" means to land on, bring into, or introduce into, or attempt to land

on, bring into, or introduce into, any place subject to the jurisdiction of the United States,

whether or not such landing, bringing, or introduction constitutes an importation within the

meaning of the customs laws of the United States.

(11) The term "permit or license applicant" means, when used with respect to an action

of a Federal agency for which exemption is sought under section 7, any person whose

application to such agency for a permit or license has been denied primarily because of the

application of section 7(a) to such agency action.

(12) "The term person means an individual, corporation, partnership, trust, association,

or any other private entity; or any officer, employee, agent, department, or instrumentality

of the Federal Government, of any State, municipality, or political subdivision of a State,

or of any foreign government; any State, municipality, or political subdivision of a State;

or any other entity subject to the jurisdiction of the United States."

(13) The term "plant" means any member of the plant kingdom, including seeds, roots

and other parts thereof.

(14) The term "Secretary" means, except as otherwise herein provided, the Secretary of

the Interior or the Secretary of Commerce as program responsibilities are vested pursuant

to the provisions of Reorganization Plan Numbered 4 of 1970; except that with respect to

the enforcement of the provisions of this Act and the Convention which pertain to the

importation or exportation of terrestrial plants, the term also means the Secretary of

Agriculture.

(15) The term "species" includes any subspecies of fish or wildlife or plants, and any

distinct population segment of any species or vertebrate fish or wildlife which interbreeds

when mature.

(16) The term "State" means any of the several States, the District of Columbia, the

Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and the Trust

Territory of the Pacific Islands.

(17) The term "State agency" means any State agency, department, board, commission,

or other governmental entity which is responsible for the management and conservation of

fish, plant, or wildlife resources within a State.

(18) The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or to attempt to engage in any such conduct.

(19) The term "threatened species" means any species which is likely to become an

endangered species within the foreseeable future throughout all or a significant portion of

its range.

(20) The term "United States," when used in a geographical context, includes all States.

DETERMINATION OF ENDANGERED SPECIES AND
THREATENED SPECIES

Sec. 4.

(a) GENERAL.-

(1) The Secretary shall by regulation promulgated in accordance with subsection (b)

determine whether any species is an endangered species or a threatened species because of

any of the following factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or

range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(D) the inadequacy of existing regulatory mechanisms;

(E) other natural or manmade factors affecting its continued existence.

(2) With respect to any species over which program responsibilities have been vested in

the Secretary of Commerce pursuant to Reorganization Plan Numbered 4 of 1970-

(A) in any case in which the Secretary of Commerce determines that such species

should-

(i) be listed as an endangered species or a threatened species, or

(ii) be changed in status from a threatened species to an endangered species, he shall

so inform the Secretary of the Interior, who shall list such species in accordance with this

section;

(B) in any case in which the Secretary of Commerce determines that such species

should-

(i) be removed from any list published pursuant to subsection (c) of this section, or

(ii) be changed in status from an endangered species to a threatened species, he shall

recommend such action to the Secretary of the Interior, and the Secretary of the Interior, if

he concurs in the recommendation, shall implement such action; and

and may not change the status of any such species which are listed, without a prior

favorable determination made pursuant to this section by the Secretary of Commerce.

(3) The Secretary, by regulation promulgated in accordance with subsection (b) and to the

maximum extent prudent and determinable-

(A) shall, concurrently with making a determination under paragraph (1) that a species

is an endangered species or a threatened species, designate any habitat of such species

which is then considered to be critical habitat; and

(B) may, from time-to-time thereafter as appropriate, revise such designation.

(b) BASIS FOR DETERMINATIONS.-

(1)(A) The Secretary shall make determinations required by subsection (a)(1) solely on

the basis of the best scientific and commercial data available to him after conducting a

review of the status of the species and after taking into account those efforts, if any, being

made by any State or foreign nation, or any political subdivision of a State or foreign

nation, to protect such species, whether by predator control, protection of habitat and food

supply, or other conservation practices, within any area under its jurisdiction, or on the

high seas.

(B) In carrying out this section, the Secretary shall give consideration to species which

have been-

(i) designated as requiring protection from unrestricted commerce by any foreign

nation, or pursuant to any international agreement; or

(ii) identified as in danger of extinction, or likely to become so within the foreseeable

future, by any State agency or by any agency of a foreign nation that is responsible for the

conservation of fish or wildlife or plants.

(2) The Secretary shall designate critical habitat, and make revisions thereto, under

subsection (a)(3) on the basis of the best scientific data available and after taking into

consideration the economic impact, and any other relevant impact, of specifying any

particular area as critical habitat. The Secretary may exclude any area from critical habitat

if he determines that the benefits of such exclusion outweigh the benefits of specifying such

area as part of the critical habitat, unless he determines, based on the best scientific and

commercial data available, that the failure to designate such area as critical habitat will

result in the extinction of the species concerned.

(3)(A) To the maximum extent practicable, within 90 days after receiving the petition of

an interested person under section 553(e) of title 5, United States Code, to add a species to,

or to remove a species from, either of the lists published under subsection (c), the

Secretary shall make a finding as to whether the petition presents substantial scientific or

commercial information indicating that the petitioned action may be warranted. If such a

petition is found to present such information, the Secretary shall promptly commence a

review of the status of the species concerned. The Secretary shall promptly publish each

finding made under this subparagraph in the Federal Register.

(B) Within 12 months after receiving a petition that is found under subparagraph (A) to

present substantial information indicating that the petitioned action may be warranted, the

Secretary shall make one of the following findings:

(i) The petitioned action is not warranted, in which case the Secretary shall promptly

publish such finding in the Federal Register.

(ii) The petitioned action is warranted in which case the Secretary shall promptly

publish in the Federal Register a general notice and the complete text of a proposed

regulation to implement such action in accordance with paragraph (5).

(iii) The petitioned action is warranted but that-

(I) the immediate proposal and timely promulgation of a final regulation implementing

the petitioned action in accordance with paragraphs (5) and (6) is precluded by pending

proposals to determine whether any species is an endangered species or a threatened

species, and

(II) expeditious progress is being made to add qualified species to either of the lists

published under subsection (c) and to remove from such lists species for which the protec-

tions of the Act are no longer necessary, in which case the Secretary shall promptly publish

such finding in the Federal Register, together with a description and evaluation of the

reasons and data on which the finding is based.

(C)(i) A petition with respect to which a finding is made under subparagraph (B)(iii) shall

be treated as a petition that is resubmitted to the Secretary under subparagraph (A) on the

date of such finding and that presents substantial scientific or commercial information that

the petitioned action may be warranted.

(ii) Any negative finding described in subparagraph (A) and any finding described in

subparagraph (B) (i) or (iii) shall be subject to judicial review.

(iii) The Secretary shall implement a system to monitor effectively the status of all

species with respect to which a finding is made under subparagraph (B)(iii) and shall make

prompt use of the authority under paragraph 7 to prevent a significant risk to the well being

of any such species.

(D)(i) To the maximum extent practicable, within 90 days after receiving the petition of

an interested person under section 553(e) of title 5, United States Code, to revise a critical

habitat designation, the Secretary shall make a finding as to whether the petition presents

substantial scientific information indicating that the revision may be warranted. The

Secretary shall promptly publish such finding in the Federal Register.

(ii) Within 12 months after receiving a petition that is found under clause (i) to present

substantial information indicating that the requested revision may be warranted, the

Secretary shall determine how he intends to proceed with the requested revision, and shall

promptly publish notice of such intention in the Federal Register.

(4) Except as provided in paragraphs (5) and (6) of this subsection, the provisions of

section 553 of title 5, United States Code (relating to rulemaking procedures), shall apply

to any regulation promulgated to carry out the purposes of this Act.

(5) With respect to any regulation proposed by the Secretary to implement a

determination, designation, or revision referred to in subsection (a) (1) or (3), the Secretary

shall-

(A) not less than 90 days before the effective date of the regulation-

(i) publish a general notice and the complete text of the proposed regulation in the

Federal Register, and

(ii) give actual notice of the proposed regulation (including the complete text of the

regulation) to the State agency in each State in which the species is believed to occur, and

to each county or equivalent jurisdiction in which the species is believed to occur, and

invite the comment of such agency, and each such jurisdiction, thereon;

(B) insofar as practical, and in cooperation with the Secretary of State, give notice of the

proposed regulation to each foreign nation in which the species is believed to occur or

whose citizens harvest the species on the high seas, and invite the comment of such nation

thereon;

he deems appropriate;

(D) publish a summary of the proposed regulation in a newspaper of general circulation

in each area of the United States in which the species is believed to occur; and

(E) promptly hold one public hearing on the proposed regulation if any person files a

request for such a hearing within 45 days after the date of publication of general notice.

(6)(A) Within the one-year period beginning on the date on which general notice is

published in accordance with paragraph (5)(A)(i) regarding a proposed regulation, the

Secretary shall publish in the Federal Register-

(i) if a determination as to whether a species is an endangered species or a threatened

species, or a revision of critical habitat, is involved, either-

(I) a final regulation to implement such determination,

(II) a final regulation to implement such revision or a finding that such revision

should not be made,

(III) notice that such one-year period is being extended under subparagraph (B)(i), or

(IV) notice that the proposed regulation is being withdrawn under subparagraph

(B)(ii), together with the finding on which such withdrawal is based; or

(ii) subject to subparagraph (C), if a designation of critical habitat is involved, either-

(I) a final regulation to implement such designation, or

(II) notice that such one-year period is being extended under such subparagraph.

(B)(i) If the Secretary finds with respect to a proposed regulation referred to in

subparagraph (A)(i) that there is substantial disagreement regarding the sufficiency or

accuracy of the available data relevant to the determination or revision concerned the

Secretary may extend the one-year period specified in subparagraph (A) for not more than

six months for purposes of soliciting additional data.

(ii) If a proposed regulation referred to in subparagraph (a)(i) is not promulgated as a

final regulation within such one-year period (or longer period if extension under clause (i)

applies) because the Secretary finds that there is not sufficient evidence to justify the action

proposed by the regulation the Secretary shall immediately withdraw the regulation. The

finding on which a withdrawal is based shall be subject to judicial review. The Secretary

may not propose a regulation that has previously been withdrawn under this clause unless

he determines that sufficient new information is available to warrant such proposal.

(iii) If the one-year period specified in subparagraph (A) is extended under clause (i)

with respect to a proposed regulation, then before the close of such extended period the

Secretary shall publish in the Federal Register either a final regulation to implement the

determination or revision concerned, a finding that the revision should not be made, or a

notice of withdrawal of the regulation under clause (ii), together with the finding on which

the withdrawal is based.

threatened species shall be published concurrently with the final regulation implementing

the determination that such species is endangered or threatened, unless the Secretary deems

that-

(i) it is essential to the conservation of such species that the regulation implementing

such determination be promptly published; or

(ii) critical habitat of such species is not then determinable, in which case the

Secretary, with respect to the proposed regulation to designate such habitat, may extend the

one-year period specified in subparagraph (A) by not more than one additional year, but

not later than the close of such additional year the Secretary must publish a final

regulation, based on such data as may be available at that time, designating, to the

maximum extent prudent, such habitat.

(7) Neither paragraph (4), (5), or (6) of this subsection nor section 553 of title 5, United

States Code, shall apply to any regulation issued by the Secretary in regard to any

emergency posing a significant risk to the well-being of any species of fish and wildlife or

plants, but only if-

(A) at the time of publication of the regulation in the Federal Register the Secretary

publishes therein detailed reasons why such regulation is necessary; and

(B) in the case such regulation applies to resident species of fish or wildlife, or plants,

the Secretary gives actual notice of such regulation to the State agency in each State in

which such species is believed to occur.

Such regulation shall, at the discretion of the Secretary, take effect immediately upon the

publication of the regulation in the Federal Register. Any regulation promulgated under

the authority of this paragraph shall cease to have force and effect at the close of the

240-day period following the date of publication unless, during such 240-day period, the

rulemaking procedures which would apply to such regulation without regard to this

paragraph are complied with. If at any time after issuing an emergency regulation the

Secretary determines, on the basis of the best appropriate data available to him, that

substantial evidence does not exist to warrant such regulation, he shall withdraw it.

(8) The publication in the Federal Register of any proposed or final regulation which is

necessary or appropriate to carry out the purposes of this Act shall include a summary by

the Secretary of the data on which such regulation is based and shall show the relationship

of such data to such regulation; and if such regulation designates or revises critical habitat,

such summary shall, to the maximum extent practicable, also include a brief description

and evaluation of those activities (whether public or private) which, in the opinion of the

Secretary, if undertaken may adversely modify such habitat, or may be affected by such

designation.

(1) The Secretary of the Interior shall publish in the Federal Register a list of all species

determined by him or the Secretary of Commerce to be endangered species and a list of all

species determined by him or the Secretary of Commerce to be threatened species. Each

list shall refer to the species contained therein by scientific and common name or names, if

any, specify with respect to such species over what portion of its range it is endangered or

threatened, and specify any critical habitat within such range. The Secretary shall from

time to time revise each list published under the authority of this subsection to reflect

recent determinations, designations, and revisions made in accordance with subsections (a)

and (b).

(2) The Secretary shall-

(A) conduct, at least once every five years, a review of all species included in a list

which is published pursuant to paragraph (1) and which is in effect at the time of such

review; and

(B) determine on the basis of such review whether any such species should-

(i) be removed from such list;

(ii) be changed in status from an endangered species to a threatened species; or

(iii) be changed in status from a threatened species to an endangered species.

Each determination under subparagraph (B) shall be made in accordance with the

provisions of subsection (a) and (b).

(d) PROTECTIVE REGULATIONS.-Whenever any species is listed as a threatened

species pursuant to subsection (c) of this section, the Secretary shall issue such regulations

as he deems necessary and advisable to provide for the conservation of such species. The

Secretary may by regulation prohibit with respect to any threatened species any act

prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the

case of plants, with respect to endangered species; except that with respect to the taking of

resident species of fish or wildlife, such regulations shall apply in any State which has

entered into a cooperative agreement pursuant to section 6(c) of this Act only to the extent

that such regulations have also been adopted by such State.

(e) SIMILARITY OF APPEARANCE CASES.-The Secretary may, by regulation of

commerce or taking, and to the extent he deems advisable, treat any species as an

endangered species or threatened species even though it is not listed pursuant to section 4

of this Act if he finds that-

(A) such species so closely resembles in appearance, at the point in question, a species

which has been listed pursuant to such section that enforcement personnel would have

substantial difficulty in attempting to differentiate between the listed and unlisted species;

(B) the effect of this substantial difficulty is an additional threat to an endangered or

threatened species; and

further the policy of this Act.

(f)(1) RECOVERY PLANS.-The Secretary shall develop and implement plans (hereinafter

in this subsection referred to as "recovery plans") for the conservation and survival of

endangered species and threatened species listed pursuant to this section, unless he finds

that such a plan will not promote the conservation of the species. The Secretary, in

development and implementing recovery plans, shall, to the maximum extent practicable-

(A) give priority to those endangered species or threatened species, without regard to

taxonomic classification, that are most likely to benefit from such plans, particularly those

species that are, or may be, in conflict with construction or other development projects or

other forms of economic activity;

(B) incorporate in each plan-

(i) a description of such site-specific management actions as may be necessary to

achieve the plan's goal for the conservation and survival of the species;

(ii) objective, measurable criteria which, when met, would result in a determination, in

accordance with the provisions of this section, that the species be removed from the list;

and

(iii) estimates of the time required and the cost to carry out those measures needed to

achieve the plan's goal and to achieve intermediate steps toward that goal.

(2) The Secretary, in developing and implementing recovery plans, may procure the

services of appropriate public and private agencies and institutions, and other qualified

persons. Recovery teams appointed pursuant to this subsection shall not be subject to the

Federal Advisory Committee Act.

(3) The Secretary shall report every two years to the Committee on Environment and

Public Works of the Senate and the Committee on Merchant Marine and Fisheries of the

House of Representatives on the status of efforts to develop and implement recovery plans

for all species listed pursuant to this section and on the status of all species for which such

plans have been developed.

(4) The Secretary shall, prior to final approval of a new or revised recovery plan, provide

public notice and an opportunity for public review and comment on such plan. The

Secretary shall consider all information presented during the public comment period prior

to approval of the plan.

(5) Each Federal agency shall, prior to implementation of a new or revised recovery plan,

consider all information presented during the public comment period under paragraph (4).

(g) MONITORING.-

(1) The Secretary shall implement a system in cooperation with the States to monitor

effectively for not less than five years the status of all species which have recovered to the

point at which the measures provided pursuant to this Act are no longer necessary and

which, in accordance with the provisions of this section, have been removed from either of

the lists published under subsection (c).

(2) The Secretary shall make prompt use of the authority under paragraph 7 of subsection

(b) of this section to prevent a significant risk to the well being of any such recovered

species.

(h) AGENCY GUIDELINES.-The Secretary shall establish, and publish in the Federal

efficiently and effectively. Such guidelines shall include, but are not limited to-

(1) procedures for recording the receipt and the disposition of petitions submitted under

subsection (b)(3) of this section;

(2) criteria for making the findings required under such subsection with respect to

petitions;

(3) a ranking system to assist in the identification of species that should receive priority

review under subsection (a)(1) of the section; and

(4) a system for developing and implementing, on a priority basis, recovery plans under

subsection (f) of this section. The Secretary shall provide to the public notice of, and

opportunity to submit written comments on, any guideline (including any amendment

thereto) proposed to be established under this subsection.

(i) If, in the case of any regulation proposed by the Secretary under the authority of this

section, a State agency to which notice thereof was given in accordance with subsection

(b)(5)(A)(ii) files comments disagreeing with all or part of the proposed regulation, and the

Secretary issues a final regulation which is in conflict with such comments, or if the

Secretary fails to adopt a regulation pursuant to an action petitioned by a State agency

under subsection (b)(3), the Secretary shall submit to the State agency a written justification

for his failure to adopt regulations consistent with the agency's comments or petition.

LAND ACQUISITION

SEC. 5.

(a) PROGRAM.-The Secretary, and the Secretary of Agriculture with respect to the

National Forest System, shall establish and implement a program to conserve fish, wildlife,

and plants, including those which are listed as endangered species or threatened species

pursuant to section 4 of this Act. To carry out such a program, the appropriate Secretary-

(1) shall utilize the land acquisition and other authority under the Fish and Wildlife Act of

1956, as amended, the Fish and Wildlife Coordination Act, as amended, and the Migratory

Bird Conservation Act, as appropriate; and

(2) is authorized to acquire by purchase, donation, or otherwise, lands, waters, or interest

therein, and such authority shall be in addition to any other land acquisition vested in him.

(b) ACQUISITIONS.-Funds made available pursuant to the Land and Water Conservation

Fund Act of 1965, as amended, may be used for the purpose of acquiring lands, waters, or

interests therein under subsection (a) of this section.

COOPERATION WITH THE STATES

SEC. 6.

(a) GENERAL.-In carrying out the program authorized by this Act, the Secretary shall

cooperate to the maximum extent practicable with the States. Such cooperation shall

include consultation with the States concerned before acquiring any land or water, or

interest therein, for the purpose of conserving any endangered species or threatened

species.

(b) MANAGEMENT AGREEMENTS.-The Secretary may enter into agreements with any

State for the administration and management of any area established for the conservation of

endangered species or threatened species. Any revenues derived from the administration of

such areas under these agreements shall be subject to the provisions of section 401 of the

Act of June 15, 1935 (49 Stat. 383; 16 U.S.C. 715s).

(c)(1) COOPERATIVE AGREEMENTS.-In furtherance of the purposes of this Act, the

Secretary is authorized to enter into a cooperative agreement in accordance with this

section with any State which establishes and maintains an adequate and active program for

the conservation of endangered species and threatened species. Within one hundred and

twenty days after the Secretary receives a certified copy of such a proposed State program,

he shall make a determination whether such program is in accordance with this Act.

Unless he determines, pursuant to this paragraph, that the State program is not in

accordance with this Act, he shall enter into a cooperative agreement with the State for the

purpose of assisting in implementation of the State program. In order for a State program

to be deemed an adequate and active program for the conservation of endangered species

and threatened species, the Secretary must find, and annually thereafter reconfirm such

finding, that under the State program-

(A) authority resides in the State agency to conserve resident species of fish or wildlife

determined by the State agency or the Secretary to be endangered or threatened;

(B) the State agency has established acceptable conservation programs, consistent with

the purposes and policies of this Act, for all resident species of fish or wildlife in the State

which are deemed by the Secretary to be endangered or threatened, and has furnished a

copy of such plan and program together with all pertinent details, information, and data

requested to the Secretary;

requirements for survival of resident species of fish and wildlife;

(D) the State agency is authorized to establish programs, including the acquisition of land

or aquatic habitat or interests therein, for the conservation of resident endangered or threat-

ened species of fish or wildlife; and

(E) provision is made for public participation in designating resident species of fish or

wildlife as endangered or threatened, or that under the State program-

(i) the requirements set forth in paragraphs (3), (4), and (5) of this subsection are

complied with, and

(ii) plans are included under which immediate attention will be given to those resident

species of fish and wildlife which are determined by the Secretary or the State agency to be

endangered or threatened and which the Secretary and the State agency agree are most

urgently in need of conservation programs; except that a cooperative agreement entered

into with a State whose program is deemed adequate and active pursuant to clause (i) and

this clause and this subparagraph shall not affect the applicability of prohibitions set forth

in or authorized pursuant to section 4(d) or section 9(a)(1) with respect to the taking of any

resident endangered or threatened species.

(2) In furtherance of the purposes of this Act, the Secretary is authorized to enter into a

cooperative agreement in accordance with this section with any State which establishes and

maintains an adequate and active program for the conservation of endangered species and

threatened species of plants. Within one hundred and twenty days after the Secretary

receives a certified copy of such a proposed State program, he shall make a determination

whether such program is in accordance with this Act. Unless he determines, pursuant to

this paragraph, that the State program is not in accordance with this Act, he shall enter into

a cooperative agreement with the State for the purpose of assisting in implementation of the

State program. In order for a State program to be deemed an adequate and active program

for the conservation of endangered species of plants and threatened species of plants, the

Secretary must find, and annually thereafter reconfirm such finding, that under the State

program-

(A) authority resides in the State agency to conserve resident species of plants

determined by the State agency or the Secretary to be endangered or threatened;

(B) the State agency has established acceptable conservation programs, consistent with

the purposes and policies of this Act, for all resident species of plants in the State which

are deemed by the Secretary to be endangered or threatened, and has furnished a copy of

such plan and program together with all pertinent details, information, and data requested

to the Secretary;

requirements for survival of resident species of plants; and

(D) provision is made for public participation in designating resident species of plants as

endangered or threatened; or that under the State program-

(i) the requirements set forth in subparagraphs (C) and (D) of this paragraph are

complied with, and

(ii) plans are included under which immediate attention will be given to those resident

species of plants which are determined by the Secretary or the State agency to be

endangered or threatened and which the Secretary and the State agency agree are most

urgently in need of conservation programs; except that a cooperative agreement entered

into with a State whose program is deemed adequate and active pursuant to clause (i) and

this clause shall not affect the applicability of prohibitions set forth in or authorized

pursuant to section 4(d) or section 9(a)(1) with respect to the taking of any resident

endangered or threatened species.

(d) ALLOCATION OF FUNDS.-

(1) The Secretary is authorized to provide financial assistance to any State, through its

respective State agency, which has entered into a cooperative agreement pursuant to

subsection (c) of this section to assist in development of programs for the conservation of

endangered and threatened species or to assist in monitoring the status of candidate species

pursuant to subparagraph (C) of section 4(b)(3) and recovered species pursuant to section

4(g). The Secretary shall allocate each annual appropriation made in accordance with the

provisions of subsection (i) of this section to such States based on consideration of-

(A) the international commitments of the United States to protect endangered species or

threatened species;

(B) the readiness of a State to proceed with a conservation program consistent with the

objectives and purposes of this Act;

(D) the potential for restoring endangered species and threatened species within a State;

(E) the relative urgency to initiate a program to restore and protect an endangered

species or threatened species in terms of survival of the species;

(F) the importance of monitoring the status of candidate species within a State to prevent

a significant risk to the well being of any such species; and

(G) the importance of monitoring the status of recovered species within a State to assure

that such species do not return to the point at which the measures provided pursuant to this

Act are again necessary.

So much of the annual appropriation made in accordance with provisions of subsection (i)

of this section allocated for obligation to any State for any fiscal year as remains

unobligated at the close thereof is authorized to fie made available to that State until the

close of the succeeding fiscal year. Any amount allocated to any State which is

unobligated at the end of the period during which it is available for expenditure is

authorized to be made available for expenditure by the Secretary in conducting programs

under this section.

(2) Such cooperative agreements shall provide for-

(A) the actions to be taken by the Secretary and the States;

(B) the benefits that are expected to be derived in connection with the conservation of

endangered or threatened species;

(D) the share of such costs to be borne by the Federal Government and by the States;

except that-

(i) the Federal share of such program costs shall not exceed 75 percent of the estimated

program cost stated in the agreement; and

(ii) the Federal share may be increased to 90 percent whenever two or more States

having a common interest in one or more endangered or threatened species, the

conservation of which may be enhanced by cooperation of such States, enter jointly into

agreement with the Secretary.

The Secretary may, in his discretion, and under such rules and regulations as he may

prescribe, advance funds to the State for financing the United States pro rata share agreed

upon in the cooperative agreement. For the purposes of this section, the non-Federal share

may, in the discretion of the Secretary, be in the form of money or real property, the value

of which will be determined by the Secretary whose decision shall be final.

(e) REVIEW OF STATE PROGRAMS.-Any action taken by the Secretary under this

section shall be subject to his periodic review at no greater than annual intervals.

(f) CONFLICTS BETWEEN FEDERAL AND STATE LAWS.-Any State law or

regulation which applies with respect to the importation or exportation of, or interstate or

foreign commerce in, endangered species or threatened species is void to the extent that it

may effectively

(1) permit what is prohibited by this Act of by any regulation which implements this Act,

(2) prohibit what is authorized pursuant to an exemption or permit provided for in this

Act or in any regulation which implements this Act. This Act shall not otherwise be

construed to void any State law or regulation which is intended to conserve migratory,

resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or

wildlife. Any State law or regulation respecting the taking of an endangered species or

threatened species may be more restrictive than the exemptions or permits provided for in

this Act or in any regulation which implements this Act but not less restrictive than the

prohibitions so defined.

(g) TRANSITION.-

(1) For purposes of this subsection, the term "establishment period" means, with respect

to any State, the period beginning on the date of enactment of this Act and ending on

whichever of the following dates first occurs:

(A) the date of the close of the 120-day period following the adjournment of the first

regular session of the legislature of such State which commences after such date of

enactment, or

(B) the date of the close of the 15 month period following such date of enactment.

(2) The prohibitions set forth in or authorized pursuant to sections 4(d) and 9(a)(1)(B) of

this Act shall not apply with respect to the taking of any resident endangered species or

threatened species (other than species listed in Appendix I to the Convention or otherwise

specifically covered by any other treaty or Federal law) within any State-

(A) which is then a party to a cooperative agreement with the Secretary pursuant to

section 6(c) of this Act (except to the extent that the taking of any such species is contrary

to the law of such State); or

(B) except for any time within the establishment period when-

(i) the Secretary applies such prohibition to such species at the request of the State, or

(ii) the Secretary applies such prohibition after he finds, and publishes his finding, that

an emergency exists posing a significant risk to the well-being of such species and that the

prohibition must be applied to protect such species. The Secretary's finding and

publication may be made without regard to the public hearing or comment provisions of

section 553 of title 5, United States Code, or any other provision of this Act; but such

prohibition shall expire 90 days after the date of its imposition unless the Secretary further

extends such prohibition by publishing notice and a statement of justification of such

extension.

(h) REGULATIONS.-The Secretary is authorized to promulgate such regulations as may

be appropriate to carry out the provisions of this section relating to financial assistance to

States.

(i) APPROPRIATIONS.-

(1) To carry out the provisions of this section for fiscal years after September 30, 1988,

there shall be deposited into a special fund known as the cooperative endangered species

conservation fund, to be administered by the Secretary, an amount equal to five percent of

the combined amounts covered each fiscal year into the Federal aid to wildlife restoration

fund under section 3 of the Act of September 2, 1937, and paid, transferred, or otherwise

credited each fiscal year to the Sport Fishing Restoration Account established under 1016

of the Act of July 18, 1984.

(2) Amounts deposited into the special fund are authorized to be appropriated annually

and allocated in accordance with subsection (d) of this section.

INTERAGENCY COOPERATION

SEC. 7.

(a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.-

(1) The Secretary shall review other programs administered by him and utilize such

programs in furtherance of the purposes of this Act. All other Federal agencies shall, in

consultation with and with the assistance of the Secretary, utilize their authorities in

furtherance of the purposes of this Act by carrying out programs for the conservation of

endangered species and threatened species listed pursuant to section 4 of this Act.

(2) Each Federal agency shall, in consultation with and with the assistance of the

Secretary, insure that any action authorized, funded, or carried out by such agency

(hereinafter in this section referred to as an "agency action") is not likely to jeopardize the

continued existence of any endangered species or threatened species or result in the

destruction or adverse modification of habitat of such species which is determined by the

Secretary, after consultation as appropriate with affected States, to be critical, unless such

agency has been granted an exemption for such action by the Committee pursuant to

subsection (h) of this section. In fulfilling the requirements of this paragraph each agency

shall use the best scientific and commercial data available.

(3) Subject to such guidelines as the Secretary may establish, a Federal agency shall

consult with the Secretary on any prospective agency action at the request of, and in

cooperation with, the prospective permit or license applicant if the applicant has reason to

believe that an endangered species or a threatened species may be present in the area

affected by his project and that implementation of such action will likely affect such

species.

(4) Each Federal agency shall confer with the Secretary on any agency action which is

likely to jeopardize the continued existence of any species proposed to be listed under

section 4 or result in the destruction or adverse modification of critical habitat proposed to

be designated for such species. This paragraph does not require a limitation on the

commitment of resources as described in subsection (d).

(b) OPINION OF SECRETARY.-

(1)(A) Consultation under subsection (a)(2) with respect to any agency action shall be

concluded within the 90-day period beginning on the date on which initiated or, subject to

subparagraph (B), within such other period of time as is mutually agreeable to the

Secretary and the Federal agency;

(B) in the case of an agency action involving a permit or license applicant, the Secretary

and the Federal agency may not mutually agree to conclude consultation within a period

exceeding 90 days unless the Secretary, before the close of the 90th day referred to in

subparagraph (A)-

(i) if the consultation period proposed to be agreed to will end before the 150th day

after the date on which consultation was initiated, submits to the applicant a written

statement setting forth-

(I) the reasons why a longer period is required;

(II) the information that is required to complete the consultation; and

(III) the estimated date on which consultation will be completed; or

(ii) if the consultation period proposed to be agreed to will end 150 or more days after

the date on which consultation was initiated, obtains the consent of the applicant to such

period. The Secretary and the Federal agency may mutually agree to extend a consultation

period established under the preceding sentence if the Secretary, before the close of such

period, obtains the consent of the applicant to the extension.

(2) Consultation under subsection (a)(3) shall be concluded within such period as is

agreeable to the Secretary, the Federal agency, and the applicant concerned.

(3)(A) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection

(a), the Secretary shall provide to the Federal agency and the applicant, if any, a written

statement setting forth the Secretary's opinion, and a summary of the information on which

the opinion is based, detailing how the agency action affects the species or its critical

habitat. If jeopardy or adverse modification is found, the Secretary shall suggest those

reasonable and prudent alternatives which he believes would not violate subsection (a)(2)

and can be taken by the Federal agency or applicant in implementing the agency action.

(B) Consultation under subsection (a)(3), and an opinion based by the Secretary incident

to such consultation, regarding an agency action shall be treated respectively as a

consultation under subsection (a)(2), and as an opinion issued after consultation under such

subsection, regarding that action if the Secretary reviews the action before it is commenced

by the Federal agency and finds, and notifies such agency, that no significant changes have

been made with respect to the action and that no significant change has occurred regarding

the information used during the initial consultation.

(4) If after consultation under subsection (a)(2) of this section, the Secretary concludes that-

(A) the agency action will not violate such subsection, or offers reasonable and prudent

alternatives which the Secretary believes would not violate such subsection;

(B) the taking of an endangered species or a threatened species incidental to the agency

action will not violate such subsection; and

taking is authorized pursuant to section 1371(a)(5) of this title; the Secretary shall provide

the Federal agency and the applicant concerned, if any, with a written statement that-

(i) specifies the impact of such incidental taking on the species,

(ii) specifies those reasonable and prudent measures that the Secretary considers

necessary or appropriate to minimize such impact,

(iii) in the case of marine mammals, specifies those measures that are necessary to

comply with section 1371(a)(5) of this title with regard to such taking, and

(iv) sets forth the terms and conditions (including, but not limited to, reporting

requirements) that must be complied with by the Federal agency or applicant (if any), or

both, to implement the measures specified under clauses (ii) and (iii).

(1) To facilitate compliance with the requirements of subsection (a)(2) each Federal

agency shall, with respect to any agency action of such agency for which no contract for

construction has been entered into and for which no construction has begun on the date of

enactment of the Endangered Species Act Amendments of 1978, request of the Secretary

information whether any species which is listed or proposed to be listed may be present in

the area of such proposed action. If the Secretary advises, based on the best scientific and

commercial data available, that such species may be present, such agency shall conduct a

biological assessment for the purpose of identifying any endangered species or threatened

species which is likely to be affected by such action. Such assessment shall be completed

within 180 days after the date on which initiated (or within such other period as is mutually

agreed to by the Secretary and such agency, except that if a permit or license applicant is

involved, the 180-day period may not be extended unless such agency provides the

applicant, before the close of such period, with a written statement setting forth the esti-

mated length of the proposed extension and the reasons therefor) and, before any contract

for construction is entered into and before construction is begun with respect to such

action. Such assessment may be undertaken as part of a Federal agency's compliance with

the requirements of section 102 of the National Environmental Policy Act of 1969 (42

U.S.C. 4332).

(2) Any person who may wish to apply for an exemption under subsection (g) of this

section for that action may conduct a biological assessment to identify any endangered

species or threatened species which is likely to be affected by such action. Any such bio-

logical assessment must, however, be conducted in cooperation with the Secretary and

under the supervision of the appropriate Federal agency.

(d) LIMITATION ON COMMITMENT OF RESOURCES.-After initiation of

consultation required under subsection (a)(2), the Federal agency and the permit or license

applicant shall not make any irreversible or irretrievable commitment of resources with

respect to the agency action which has the effect of foreclosing the formulation or

implementation of any reasonable and prudent alternative measures which would not violate

subsection (a)(2).

(e)(1) ESTABLISHMENT OF COMMITTEE.-There is established a committee to be

known as the Endangered Species Committee (hereinafter in this section referred to as the

"Committee").

(2) The Committee shall review any application submitted to it pursuant to this section

and determine in accordance with subsection (h) of this section whether or not to grant an

exemption from the requirements of subsection (a)(2) of this action for the action set forth

in such application.

(3) The Committee shall be composed of seven members as follows:

(A) The Secretary of Agriculture.

(B) The Secretary of the Army.

(D) The Administrator of the Environmental Protection Agency. Agency.

(E) The Secretary of the Interior.

(F) The Administrator of the National Oceanic and Atmospheric Administration.

(G) The President, after consideration of any recommendations received pursuant to

subsection (g)(2)(B) shall appoint one individual from each affected State, as determined by

the Secretary, to be a member of the Committee for the consideration of the application for

exemption for an agency action with respect to which such recommendations are made, not

later than 30 days after an application is submitted pursuant to this section.

(4)(A) Members of the Committee shall receive no additional pay on account of their

service on the Committee.

(B) While away from their homes or regular places of business in the performance of

services for the Committee, members of the Committee shall be allowed travel expenses,

including per diem in lieu of subsistence, in the same manner as persons employed inter-

mittently in the Government service are allowed expenses under section 5703 of title 5 of

the United States Code.

(5)(A) Five members of the Committee or their representatives shall constitute a quorum

for the transaction of any function of the Committee, except that, in no case shall any

representative be considered in determining the existence of a quorum for the transaction of

any function of the Committee if that function involves a vote by the Committee on any

matter before the Committee.

(B) The Secretary of the Interior shall be the Chairman of the Committee.

(D) All meetings and records of the Committee shall be open to the public.

(6) Upon request of the Committee, the head of any Federal agency is authorized to

detail, on a nonreimbursable basis, any of the personnel of such agency to the Committee

to assist it in carrying out its duties under this section.

(7)(A) The Committee may for the purpose of carrying out its duties under this section

hold such hearings, sit and act at such times and places, take such testimony, and receive

such evidence,

as the Committee deems advisable.

(B) When so authorized by the Committee, any member or agent of the Committee may

take any action which the Committee is authorized to take by this paragraph.

agency information necessary to enable it to carry out its duties under this section. Upon

request of the Chairman of the Committee, the head of such Federal agency shall furnish

such information to the Committee.

(D) The Committee may use the United States mails in the same manner and upon the

same conditions as a Federal agency.

(E) The Administrator of General Services shall provide to the Committee on a

reimbursable basis such administrative support services as the Committee may request.

(8) In carrying out its duties under this section, the Committee may promulgate and

amend such rules, regulations, and procedures, and issue and amend such orders as it

deems necessary.

(9) For the purpose of obtaining information necessary for the consideration of an

application for an exemption under this section the Committee may issue subpoenas for the

attendance and testimony of witnesses and the production of relevant papers, books, and

documents.

(10) In no case shall any representative, including a representative of a member

designated pursuant to paragraph (3)(G) of this subsection, be eligible to cast a vote on

behalf of any member.

(f) REGULATIONS.-Not later than 90 days after the date of enactment of the Endangered

Species Act Amendments of 1978, the Secretary shall promulgate regulations which set

forth the form and manner in which applications for exemption shall be submitted to the

Secretary and the information to be contained in such applications. Such regulations shall

require that information submitted in an application by the head of any Federal agency with

respect to any agency action include but not be limited to-

(1) a description of the consultation process carried out pursuant to subsection (a)(2) of

this section between the head of the Federal agency and the Secretary; and

(2) a statement describing why such action cannot be altered or modified to conform with

the requirements of subsection (a)(2) of this section.

(g) APPLICATION FOR EXEMPTION AND REPORT TO THE COMMITTEE.-

(1) A Federal agency, the Governor of the State in which an agency action will occur, if

any, or a permit or license applicant may apply to the Secretary for an exemption for an

agency action of such agency if, after consultation under subsection (a)(2), the Secretary's

opinion under subsection (b) indicates that the agency action would violate subsection

(a)(2). An application for an exemption shall be considered initially by the Secretary in the

manner provided for in this subsection, and shall be considered by the Committee for a

final determination under subsection (h) after a report is made pursuant to paragraph (5).

The applicant for an exemption shall be referred to as the "exemption applicant" in this

section.

(2)(A) An exemption applicant shall submit a written application to the Secretary, in a

form prescribed under subsection (f), not later than 90 days after the completion of the

consultation process; except that, in the case of any agency action involving a permit or

license applicant, such application shall be submitted not later than 90 days after the date

on which the Federal agency concerned takes final agency action with respect to the

issuance of the permit or license. For purposes of the preceding sentence, the term "final

agency action" means (i) a disposition by an agency with respect to the issuance of a permit

or license that is subject to administrative review, whether or not such disposition is subject

to judicial review; or (ii) if administrative review is sought with respect to such disposition,

the decision resulting after such review. Such application shall set forth the reasons why

the exemption applicant considers that the agency action meets the requirements for an

exemption under this subsection.

(B) Upon receipt of an application for exemption for an agency action under paragraph

(1), the Secretary shall promptly

(i) notify the Governor of each affected State, if any, as determined by the Secretary,

and request the Governors so notified to recommend individuals to be appointed to the

Endangered Species Committee for consideration of such application; and

(ii) publish notice of receipt of the application in the Federal Register, including a

summary of the information contained in the application and a description of the agency

action with respect to which the application for exemption has been filed.

(3) The Secretary shall within 20 days after the receipt of an application for exemption,

or within such other period of time as is mutually agreeable to the exemption applicant and

the Secretary

(A) determine that the Federal agency concerned and the exemption applicant have-

(i) carried out the consultation responsibilities described in subsection (a) in good faith

and made a reasonable and responsible effort to develop and fairly consider modifications

or reasonable and prudent alternatives to the proposed agency action which would not

violate subsection (a)(2);

(ii) conducted any biological assessment required by subsection (c); and

(iii) to the extent determinable within the time provided herein, refrained from making

any irreversible or irretrievable commitment of resources prohibited by subsection (d); or

(B) deny the application for exemption because the Federal agency concerned or the

exemption applicant have not met the requirements set forth in subparagraph (A) (i), (ii),

and (iii).

The denial of an application under subparagraph (B) shall be considered final agency action

for purposes of chapter 7 of title 5, United States Code.

(4) If the Secretary determines that the Federal agency concerned and the exemption

applicant have met the requirements set forth in paragraph (3)(A) (i), (ii) and (iii) he shall,

in consultation with the Members of the Committee, hold a hearing on the application for

exemption in accordance with sections 554, 555, and 556 (other than subsection (b) (1) and

(2) thereof) of title 5, United States Code, and prepare the report to be submitted pursuant

to paragraph (5).

(5) Within 140 days after making the determinations under paragraph (3) or within such

other period of time as is mutually agreeable to the exemption applicant and the Secretary,

the Secretary shall submit to the Committee a report discussing-

(A) the availability of reasonable and prudent alternatives to the agency action, and the

nature and extent of the benefits of the agency action and of alternative courses of action

consistent with conserving the species of the critical habitat;

(B) a summary of the evidence concerning whether or not the agency action is in the

public interest and is of national or regional significance;

considered by the Committee; and

(D) whether the Federal agency concerned and the exemption applicant refrained from

making any irreversible or irretrievable commitment of resources prohibited by subsection

(d).

(6) To the extent practicable within the time required for action under subsection (g) of

this section, and except to the extent inconsistent with the requirements of this section, the

consideration of any application for an exemption under this section and the conduct of any

hearing under this subsection shall be in accordance with sections 554, 555, and 556 (other

than subsection (b)(3) of section 556) of title 5, United States Code.

(7) Upon request of the Secretary, the head of any Federal agency is authorized to detail,

on a nonreimbursable basis, any of the personnel of such agency to the Secretary to assist

him in carrying out his duties under this section.

(8) All meetings and records resulting from activities pursuant to this subsection shall be

open to the public.

(h) EXEMPTION.-

(1) The Committee shall make a final determination whether or not to grant an exemption

within 30 days after receiving the report of the Secretary pursuant to subsection (g)(5).

The Committee shall grant an exemption from the requirements of subsection (a)(2) for an

agency action if, by a vote of not less than five of its members voting in person-

(A) it determines on the record, based on the report of the Secretary, the record of the

hearing held under subsection (g)(4), and on such other testimony or evidence as it may

receive, that-

(i) there are no reasonable and prudent alternatives to the agency action;

(ii) the benefits of such action clearly outweigh the benefits of alternative courses of

action consistent with conserving the species or its critical habitat, and such action is in the

public interest;

(iii) the action is of regional or national significance; and

(iv) neither the Federal agency concerned nor the exemption applicant made any

irreversible or irretrievable commitment of resources prohibited by subsection (d); and

(B) it establishes such reasonable mitigation and enhancement measures, including, but

not limited to, live propagation, transplantation, and habitat acquisition and improvement,

as are necessary and appropriate to minimize the adverse effects of the agency action upon

the endangered species, threatened species, or critical habitat concerned.

Any final determination by Committee under this subsection shall be considered final

agency action for purposes of chapter 7 of

title 5 of the United States Code.

(2)(A) Except as provided in subparagraph (B), an exemption for an agency action

granted under paragraph (1) shall constitute a permanent exemption with respect to all

endangered or threatened species for the purposes of completing such agency action-

(i) regardless whether the species was identified in the biological assessment; and

(ii) only if a biological assessment has been conducted under subsection (c) with respect

to such agency action.

(B) An exemption shall be permanent under subparagraph (A) unless-

(i) the Secretary finds, based on the best scientific and commercial data available, that

such exemption would result in the extinction of a species that was not the subject of

consultation under subsection (a)(2) or was not identified in any biological assessment

conducted under subsection (c), and

(ii) the Committee determines within 60 days after the date of the Secretary's finding

that the exemption should not be permanent.

If the Secretary makes a finding described in clause (i), the Committee shall meet with

respect to the matter within 30 days after the date of the finding.

(i) REVIEW BY SECRETARY OF STATE.-Notwithstanding any other provision of this

Act, the Committee shall be prohibited from considering for exemption any application

made to it, if the Secretary of State, after a review of the proposed agency action and its

potential implications, and after hearing, certifies, in writing, to the Committee within 60

days of any application made under this section that the granting of any such exemption

and the carrying out of such action would be in violation of an international treaty obli-

gation or other international obligation of the United States. The Secretary of State shall,

at the time of such certification, publish a copy thereof in the Federal Register.

(j) Notwithstanding any other provision of this Act, the Committee shall grant an

exemption for any agency action if the Secretary of Defense finds that such exemption is

necessary for reasons of national security.

(k) SPECIAL PROVISIONS.-An exemption decision by the Committee under this section

shall not be a major Federal action for purposes of the National Environmental Policy Act

of 1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental impact statement which

discusses the impacts upon endangered species or threatened species or their critical

habitats shall have been previously prepared with respect to any agency action exempted by

such order.

(l) COMMITTEE ORDERS.-

(1) If the Committee determines under subsection (h) that an exemption should be granted

with respect to any agency action, the Committee shall issue an order granting the

exemption and specifying the mitigation and enhancement measures established pursuant to

subsection (h) which shall be carried out and paid for by the exemption applicant in

implementing the agency action. All necessary mitigation and enhancement measures shall

be authorized prior to the implementing of the agency action and funded concurrently with

all other project features.

(2) The applicant receiving such exemption shall include the costs of such mitigation and

enhancement measures within the overall costs of continuing the proposed action.

Notwithstanding the preceding sentence the costs of such measures shall not be treated as

project costs for the purpose of computing benefit-cost or other ratios for the proposed

action. Any applicant may request the Secretary to carry out such mitigation and

enhancement measures. The costs incurred by the Secretary in carrying out any such

measures shall be paid by the applicant receiving the exemption. No later than one year

after the granting of an exemption, the exemption applicant shall submit to the Council on

Environmental Quality a report describing its compliance with the mitigation and en-

hancement measures prescribed by this section. Such report shall be submitted annually

until all such mitigation and enhancement measures have been completed. Notice of the

public availability of such reports shall be published in the Federal Register by the Council

on Environmental Quality.

(m) NOTICE.-The 60-day notice requirement of section 11(g) of this Act shall not apply

with respect to review of any final determination of the Committee under subsection (h) of

this section granting an exemption from the requirements of subsection (a)(2) of this

section.

(n) JUDICIAL REVIEW.-Any person, as defined by section 3(13) of this Act, may

obtain judicial review, under chapter 7 of title 5 of the United States Code, of any decision

of the Endangered Species Committee under subsection (h) in the United States Court of

Appeals for

(1) any circuit wherein the agency action concerned will be, or is being, carried out, or

(2) in any case in which the agency action will be, or is being, carried out outside of any

circuit, the District of Columbia, by filing in such court within 90 days after the date of

issuance of the decision, a written petition for review. A copy of such petition shall be

transmitted by the clerk of the court to the Committee and the Committee shall file in the

court the record in the proceeding, as provided in section 2112, of title 28, United States

Code. Attorneys designated by the Endangered Species Committee may appear for, and

represent the Committee in any action for review under this subsection.

(o) EXEMPTION AS PROVIDING EXCEPTION ON TAKING OF ENDANGERED

SPECIES.-Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of this title,

sections 1371 and 1372 of this title, or any regulation promulgated to implement any such

section-

(1) any action for which an exemption is granted under subsection (h) of this section shall

not be considered to be a taking of any endangered species or threatened species with

respect to any activity which is necessary to carry out such action; and

(2) any taking that is in compliance with the terms and conditions specified in a written

statement provided under subsection (b)(4)(iv) of this section shall not be considered to be

a prohibited taking of the species concerned.

(p) EXEMPTIONS IN PRESIDENTIALLY DECLARED DISASTER AREAS.- In any

area which has been declared by the President to be a major disaster area under the

Disaster Relief Act of 1974, the President is authorized to make the determinations

required by subsections (g) and (h) of this section for any project for the repair or

replacement of a public facility substantially as it existed prior to the disaster under section

401 or 402 of the Disaster Relief Act of 1974, and which the President determines

(1) is necessary to prevent the recurrence of such a natural disaster and to reduce the

potential loss of human life, and

(2) to involve an emergency situation which does not allow the ordinary procedures of

this section to be followed. Notwithstanding any other provision of this section, the

Committee shall accept the determinations of the President under this subsection.

INTERNATIONAL COOPERATION

SEC. 8.

(a) FINANCIAL ASSISTANCE.-As a demonstration of the commitment of the United

States to the worldwide protection of endangered species and threatened species, the

President may, subject to the provisions of section 1415 of the Supplemental Appropriation

Act, 1953 (31 U.S.C. 724), use foreign currencies accruing to the United States

Government under the Agricultural Trade Development and Assistance Act of 1954 or any

other law to provide to any foreign country (with its consent) assistance in the development

and management of programs in that country which the Secretary determines to be

necessary or useful for the conservation of any endangered species or threatened species

listed by the Secretary pursuant to section 4 of this Act. The President shall provide

assistance (which includes, but is not limited to, the acquisition, by lease or otherwise, of

lands, waters, or interests therein) to foreign countries under this section under such terms

and conditions as he deems appropriate. Whenever foreign currencies are available for the

provision of assistance under this section, such currencies shall be used in preference to

funds appropriated under the authority of section 15 of this Act.

(b) ENCOURAGEMENT OF FOREIGN PROGRAMS.-In order to carry out further the

provisions of this Act, the Secretary, through the Secretary of State shall encourage-

(1) foreign countries to provide for the conservation of fish or wildlife and plants

including endangered species and threatened species listed pursuant to section 4 of this Act;

(2) the entering into of bilateral or multilateral agreements with foreign countries to

provide for such conservation; and

(3) foreign persons who directly or indirectly take fish or wildlife or plants in foreign

countries or on the high seas for importation into the United States for commercial or other

purposes to develop and carry out with such assistance as he may provide, conservation

practices designed to enhance such fish or wildlife or plants and their habitat.

(1) assign or otherwise make available any officer or employee of his department for the

purpose of cooperating with foreign countries and international organizations in developing

personnel resources and programs which promote the conservation of fish or wildlife or

plants, and

(2) conduct or provide financial assistance for the educational training of foreign

personnel, in this country or abroad, in fish, wildlife, or plant management, research and

law enforcement and to render professional assistance abroad in such matters.

(d) INVESTIGATIONS.-After consultation with the Secretary of State and the Secretary

of the Treasury, as appropriate, the Secretary may conduct or cause to be conducted such

law enforcement investigations and research abroad as he deems necessary to carry out the

purposes of this Act.

CONVENTION IMPLEMENTATION

SEC. 8A.

(a) MANAGEMENT AUTHORITY AND SCIENTIFIC AUTHORITY.-The Secretary

of the Interior (hereinafter in this section referred to as the "Secretary") is designated as the

Management Authority and the Scientific Authority for purposes of the Convention and the

respective functions of each such Authority shall be carried out through the United States

Fish and Wildlife Service.

(b) MANAGEMENT AUTHORITY FUNCTIONS.-The Secretary shall do all things

necessary and appropriate to carry out the functions of the Management Authority under

the Convention.

(1) The Secretary shall do all things necessary and appropriate to carry out the functions

of the Scientific Authority under the Convention.

(2) The Secretary shall base the determinations and advice given by him under Article IV

of the Convention with respect to wildlife upon the best available biological information

derived from professionally accepted wildlife management practices; but is not required to

make, or require any State to make, estimates of population size in making such

determinations or giving such advice.

(d) RESERVATIONS BY THE UNITED STATES UNDER CONVENTION.- If the

United States votes against including any species in Appendix I or II of the Convention and

does not enter a reservation pursuant to paragraph (3) of Article XV of the Convention

with respect to that species, the Secretary of State, before the 90th day after the last day on

which such a reservation could be entered, shall submit to the Committee on Merchant

Marine and Fisheries of the House of Representatives, and to the Committee on the

Environment and Public Works of the Senate, a written report setting forth the reasons why

such a reservation was not entered.

(e) WILDLIFE PRESERVATION IN WESTERN HEMISPHERE.-

(1) The Secretary of the Interior (hereinafter in this subsection referred to as the

"Secretary"), in cooperation with the Secretary of State, shall act on behalf of, and

represent, the United States in all regards as required by the Convention on Nature

Protection and Wildlife Preservation in the Western Hemisphere (56 Stat. 1354, T.S. 982,

hereinafter in this subsection referred to as the "Western Convention"). In the discharge of

these responsibilities, the Secretary and the Secretary of State shall consult with the

Secretary of Agriculture, the Secretary of Commerce, and the heads of other agencies with

respect to matters relating to or affecting their areas of responsibility.

(2) The Secretary and the Secretary of State shall, in cooperation with the contracting

parties to the Western Convention and, to the extent feasible and appropriate, with the

participation of State agencies, take such steps as are necessary to implement the Western

Convention. Such steps shall include, but not be limited to

(A) cooperation with contracting parties and international organizations for the purpose

of developing personnel resources and programs that will facilitate implementation of the

Western Convention;

(B) identification of those species of birds that migrate between the United States and

other contracting parties, and the habitats upon which those species depend, and the

implementation of cooperative measures to ensure that such species will not become

endangered or threatened; and

provisions of the Western Convention which address the protection of wild plants.

(3) No later than September 30, 1985, the Secretary and the Secretary of State shall

submit a report to Congress describing those steps taken in accordance with the

requirements of this subsection and identifying the principal remaining actions yet

necessary for comprehensive and effective implementation of the Western Convention.

(4) The provisions of this subsection shall not be construed as affecting the authority,

jurisdiction, or responsibility of the several States to manage, control, or regulate resident

fish or wildlife under State law or regulations.

PROHIBITED ACTS

SEC. 9.

(a) GENERAL.-

(1) Except as provided in sections 6(g)(2) and 10 of this Act, with respect to any

endangered species of fish or wildlife listed pursuant to section 4 of this Act it is unlawful

for any person subject to the jurisdiction of the United States to-

(A) import any such species into, or export any such species from the United States;

(B) take any such species within the United States or the territorial sea of the United

States;

(D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such

species taken in violation of subparagraphs (B) and (C);

(E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any

means whatsoever and in the course of a commercial activity, any such species;

(F) sell or offer for sale in interstate or foreign commerce any such species; or

(G) violate any regulation pertaining to such species or to any threatened species of fish

or wildlife listed pursuant to section 4 of this Act and promulgated by the Secretary

pursuant to authority provided by this Act.

(2) Except as provided in sections 6(g)(2) and 10 of this Act, with respect to any

endangered species of plants listed pursuant to section 4 of this Act, it is unlawful for any

person subject to the jurisdiction of the United States to-

(A) import any such species into, or export any such species from, the United States;

(B) remove and reduce to possession any such species from areas under Federal

jurisdiction; maliciously damage or destroy any such species on any such area; or remove,

cut, dig up, or damage or destroy any such species on any other area in knowing violation

of any law or regulation of any state or in the course of any violation of a state criminal

trespass law;

means whatsoever and in the course of a commercial activity, any such species;

(D) sell or offer for sale in interstate or foreign commerce any such species; or

(E) violate any regulation pertaining to such species or to any threatened species of

plants listed pursuant to section 4 of this Act and promulgated by the Secretary pursuant to

authority provided by this Act.

(b)(1) SPECIES HELD IN CAPTIVITY OR CONTROLLED ENVIRONMENT. - The

provisions of subsections (a)(1)(A) and (a)(1)(G) of this section shall not apply to any fish

or wildlife which was held in captivity or in a controlled environment on

(A) December 28, 1973, or

(B) the date of the publication in the Federal Register of a final regulation adding such

fish or wildlife species to any list published pursuant to subsection (c) of section 4 of this

Act: Provided, That such holding and any subsequent holding or use of the fish or wildlife

was not in the course of a commercial activity. With respect to any act prohibited by

subsections (a)(1)(A) and (a)(1)(G) of this section which occurs after a period of 180 days

from

(i) December 28, 1973, or

(ii) the date of publication in the Federal Register of a final regulation adding such fish

or wildlife species to any list published pursuant to subsection (c) of section 4 of this Act,

there shall be a rebuttable presumption that the fish or wildlife involved in such act is not

entitled to the exemption contained in this subsection.

(2)(A) The provisions of subsections (a)(1) shall not apply to-

(i) any raptor legally held in captivity or in a controlled environment on the effective

date of the Endangered Species Act Amendments of 1978; or

(ii) any progeny of any raptor described in clause (i); until such time as any such

raptor or progeny is intentionally returned to a wild state.

(B) Any person holding any raptor or progeny described in subparagraph (A) must be

able to demonstrate that the raptor or progeny does, in fact, qualify under the provisions of

this paragraph, and shall maintain and submit to the Secretary, on request, such

inventories, documentation, and records as the Secretary may by regulation require as

being reasonably appropriate to carry out the purposes of this paragraph. Such

requirements shall not unnecessarily duplicate the requirements of other rules and

regulations promulgated by the Secretary.

(1) It is unlawful for any person subject to the jurisdiction of the United States to engage

in any trade in any specimens contrary to the provisions of the Convention, or to possess

any specimens traded contrary to the provisions of the Convention, including the definitions

of terms in article I thereof

(2) Any importation into the United States of fish or wildlife shall, if-

(A) such fish or wildlife is not an endangered species listed pursuant to section 4 of this

Act but is listed in Appendix II of the Convention;

(B) the taking and exportation of such fish or wildlife is not contrary to the provisions of

the Convention and all other applicable requirements of the Convention have been satisfied;

satisfied; and

(D) such importation is not made in the course of a commercial activity; be presumed to

be an importation not in violation of any provision of this Act or any regulation issued

pursuant to this Act.

(d) IMPORTS AND EXPORTS.-

(1) IN GENERAL.-It is unlawful for any person, without first having obtained permission

from the Secretary, to engage in business-

(A) as an importer or exporter of fish or wildlife (other than shellfish and fishery

products which

(i) are not listed pursuant to section 4 of this Act as endangered species or threatened

species, and

(ii) are imported for purposes of human or animal consumption or taken in waters

under the jurisdiction of the United States or on the high seas for recreational purposes) or

plants; or

(B) as an importer or exporter of any amount of raw or worked African elephant ivory.

(2) REQUIREMENTS.-Any person required to obtain permission under paragraph (1) of

this subsection shall-

(A) keep such records as will fully and correctly disclose each importation or exportation

of fish, wildlife, plants, or African elephant ivory made by him and the subsequent

disposition made by him with respect to such fish, wildlife, plants, or ivory;

(B) at all reasonable times upon notice by a duly authorized representative of the

Secretary, afford such representative access to his place of business, an opportunity to ex-

amine his inventory of imported fish, wildlife, plants, or African elephant ivory and the

records required to be kept under subparagraph (A) of this paragraph, and to copy such

records; and

(3) REGULATIONS.-The Secretary shall prescribe such regulations as are necessary and

appropriate to carry out the purposes of this subsection.

(4) RESTRICTION ON CONSIDERATION OF VALUE OR AMOUNT OF AFRICAN

ELEPHANT IVORY IMPORTED OR EXPORTED.-In granting permission under this

subsection for importation or exportation of African elephant ivory, the Secretary shall not

vary the requirements for obtaining such permission on the basis of the value or amount of

ivory imported or exported under such permission.

(e) REPORTS.-It is unlawful for any person importing or exporting fish or wildlife (other

than shellfish and fishery products) which

(1) are not listed pursuant to section 4 of this Act as endangered or threatened species,

and

(2) are imported for purposes of human or animal consumption or taken in waters under

the jurisdiction of the United States or on the high seas for recreational purposes) or plants

to fail to file any declaration or report as the Secretary deems necessary to facilitate

enforcement of this Act or to meet the obligations of the Convention.

(f) DESIGNATION OF PORTS.-

(1) It is unlawful for any person subject to the jurisdiction of the United States to import

into or export from the United States any fish or wildlife (other than shellfish and fishery

products which

(A) are not listed pursuant to section 4 of this Act as endangered species or threatened

species, and

(B) are imported for purposes of human or animal consumption or taken in waters under

the jurisdiction of the United States or on the high seas for recreational purposes) or plants,

except at a port or ports designated by the Secretary of the Interior. For the purposes of

facilitating enforcement of this Act and reducing the costs thereof, the Secretary of the

Interior, with approval of the Secretary of the Treasury and after notice and opportunity for

public hearing, may, by regulation, designate ports and change such designations. The

Secretary of the Interior, under such terms and conditions as he may prescribe, may permit

the importation or exportation at nondesignated ports in the interest of the health or safety

of the fish or wildlife or plants, or for other reasons if, in his discretion, he deems it

appropriate and consistent with the purpose of this subsection.

(2) Any port designated by the Secretary of the Interior under the authority of section

4(d) of the Act of December 5, 1969 (16 U.S.C. 666cc 4(d), shall, if such designation is in

effect on the day before the date of the enactment of this Act, be deemed to be a port

designated by the Secretary under paragraph (1) of this subsection until such time as the

Secretary otherwise provides.

(g) VIOLATIONS.-It is Unlawful for any person subject to the jurisdiction of the United

States to attempt to commit, solicit another to commit, or cause to be committed, any

offense defined in this section.

EXCEPTIONS

SEC. 10.

(a) PERMITS.-

(1) The Secretary may permit, under such terms and conditions as he shall prescribe-

(A) any act otherwise prohibited by section 9 for scientific purposes or to enhance the

propagation or survival of the affected species, including, but not limited to, acts necessary

for the establishment and maintenance of experimental populations pursuant subsection (j);

(B) any taking otherwise prohibited by section 9(a)(1)(B) if such taking is incidental to,

and not the purpose of, the carrying out of an otherwise lawful activity.

(2)(A) No permit may be issued by the Secretary authorizing any taking referred to in

paragraph (1)(B) unless the applicant therefor submits to the Secretary a conservation plan

that specifies-

(i) the impact which will likely result from such taking;

(ii) what steps the applicant will take to minimize and mitigate such impacts, and the

funding that will be available to implement such steps;

(iii) what alternative actions to such taking the applicant considered and the reasons

why such alternatives are not being utilized; and

(iv) such other measures that the Secretary may require as being necessary or

appropriate for purposes of the plan.

(B) If the Secretary finds, after opportunity for public comment, with respect to a permit

application and the related conservation plan that-

(i) the taking will be incidental;

(ii) the applicant will, to the maximum extent practicable, minimize and mitigate the

impacts of such taking;

(iii) the applicant will ensure that adequate funding for the plan will be provided;

(iv) the taking will not appreciably reduce the likelihood of the survival and recovery

of the species in the wild; and

(v) the measures, if any, required under subparagraph (A)(iv) will be met; and he has

received such other assurances as he may require that the plan will be implemented, the

Secretary shall issue the permit. The permit shall contain such terms and conditions as the

Secretary deems necessary or appropriate to carry out the purposes of this paragraph,

including, but not limited to, such reporting requirements as the Secretary deems necessary

for determining whether such terms and conditions are being complied with.

permittee is not complying with the terms and conditions of the permit.

(b) HARDSHIP EXEMPTIONS.-

(1) If any person enters into a contract with respect to a species of fish or wildlife or

plant before the date of the publication in the Federal Register of notice of consideration of

that species as an endangered species and the subsequent listing of that species as an

endangered species pursuant to section 4 of this Act will cause undue hardship to such

person under the contract, the Secretary, in order to minimize such hardship, may exempt

such person from the application of section 9(a) of this Act to the extent the Secretary

deems appropriate if such person applies to him for such exemption and includes with such

application such information as the Secretary may require to prove such hardship; except

that (A) no such exemption shall be for a duration of more than one year from the date of

publication in the Federal Register of notice of consideration of the species concerned, or

shall apply to a quantity of fish or wildlife or plants in excess of that specified by the

Secretary; (B) the one-year period for those species of fish or wildlife listed by the

Secretary as endangered prior to the effective date of this Act shall expire in accordance

with the terms of section 3 of the Act of December 5, 1969 (83 Stat. 275); and (C) no such

exemption may be granted for the importation or exportation of a specimen listed in

Appendix I of the Convention which is to be used in a commercial activity.

(2) As used in this subsection, the term "undue economic hardship" shall include, but not

be limited to:

(A) substantial economic loss resulting from inability caused by this Act to perform

contracts with respect to species of fish and wildlife entered into prior to the date of

publication in the Federal Register of a notice of consideration of such species as an

endangered species;

(B) substantial economic loss to persons who, for the year prior to the notice of

consideration of such species as an endangered species, derived a substantial portion of

their income from the lawful taking of any listed species, which taking would be made

unlawful under this Act; or

(i) not reasonably able to secure other sources of subsistence; and

(ii) dependent to a substantial extent upon hunting and fishing for subsistence; and

(iii) who must engage in such curtailed taking for subsistence purposes.

(3) The Secretary may make further requirements for a showing of undue economic

hardship as he deems fit. Exceptions granted under this section may be limited by the

Secretary in his discretion as to time, area, or other factor of applicability.

of each application for an exemption or permit which is made under this section. Each

notice shall invite the submission from interested parties, within thirty days after the date of

the notice, of written data, views, or arguments with respect to the application; except that

such thirty-day period may be waived by the Secretary in an emergency situation where the

health or life of an endangered animal is threatened and no reasonable alternative is

available to the applicant, but notice of any such waiver shall be published by the Secretary

in the Federal Register within ten days following the issuance of the exemption or permit.

Information received by the Secretary as part of any application shall be available to the

public as a matter of public record at every stage of the proceeding.

(d) PERMIT AND EXEMPTION POLICY.-The Secretary may grant exceptions under

subsections (a)(1)(A) and (b) of this section only if he finds and publishes his finding in the

Federal Register that

(1) such exceptions were applied for in good faith,

(2) if granted and exercised will not operate to the disadvantage of such endangered spe-

cies, and

(3) will be consistent with the purposes and policy set forth in section 2 of this Act.

(e) ALASKA NATIVES.-

(1) Except as provided in paragraph (4) of this subsection the provisions of this Act shall

not apply with respect to the taking of any endangered species or threatened species, or the

importation of any such species taken pursuant to this section, by-

(A) any Indian, Aleut, or Eskimo who is an Alaskan Native who resides in Alaska; or

(B) any non-native permanent resident of an Alaskan native village; if such taking is

primarily for subsistence purposes. Non-edible byproducts of species taken pursuant to this

section may be sold in interstate commerce when made into authentic native articles of

handicrafts and clothing; except that the provisions of this subsection shall not apply to any

non-native resident of an Alaskan native village found by the Secretary to be not primarily

dependent upon the taking of fish and wildlife for consumption or for the creation and sale

of authentic native articles of handicrafts and clothing.

(2) Any taking under this subsection may not be accomplished in a wasteful manner.

(3) As used in this subsection-

(i) The term "subsistence" includes selling any edible portion of fish or wildlife in

native villages and towns in Alaska for native consumption within native villages or towns;

and

(ii) The term "authentic native articles of handicrafts and clothing" means items

composed wholly or in some significant respect to natural materials, and which are

produced, decorated or fashioned in the exercise of traditional native handicrafts without

the use of pantographs, multiple carvers, or other mass copying devices. Traditional native

handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing,

beading, drawing, and painting.

(4) Notwithstanding the provisions of paragraph (1) of this subsection, whenever the

Secretary determines that any species of fish or wildlife which is subject to taking under

the provisions of this subsection is an endangered species or threatened species, and that

such taking materially and negatively affects the threatened or endangered species, he may

prescribe regulations upon the taking of such species by any such Indian, Aleut, Eskimo, or

non-native Alaskan resident of an Alaskan native village. Such regulations may be

established with reference to species, geographical description of the area included, the

season for taking, or any other factors related to the reason for establishing such

regulations and consistent with the policy of this Act. Such regulations shall be prescribed

after a notice and hearings in the affected judicial districts of Alaska and as otherwise

required by section 103 of the Marine Mammal Protection Act of 1972, and shall be

removed as soon as the Secretary determines that the need for their impositions has

disappeared.

(f)(1) As used in this subsection-

(A) The term "Pre-Act endangered species part" means-

(i) any sperm whale oil, including derivatives thereof, which was lawfully held within

the United States on December 28, 1973, in the course of a commercial activity; or

(ii) any finished scrimshaw product, if such product or the raw material for such

product was lawfully held within the United States on December 28, 1973, in the course of

a commercial activity.

(B) The term "scrimshaw product" means any art form which involves the substantial

etching or engraving of designs upon, or the substantial carving of figures, patterns, or

designs from, any bone or tooth of any marine mammal of the order Cetacea. For

purposes of this subsection, polishing or the adding of minor superficial markings does not

constitute substantial etching, engraving, or carving.

(2) The Secretary, pursuant to the provisions of this subsection, may exempt, if such

exemption is not in violation of the Convention, any pre-Act endangered species part from

one or more of the following prohibitions:

(A) The prohibition on exportation from the United States set forth in section 9(a)(1)(A)

of this Act.

(B) Any prohibition set forth in section 9(a)(1) (E) or (F) of this Act.

(3) Any person seeking an exemption described in paragraph (2) of this subsection shall

make application therefor to the Secretary in such form and manner as he shall prescribe,

but no such application may be considered by the Secretary unless the application-

(A) is received by the Secretary before the close of the one year period beginning on the

date on which regulations promulgated by the Secretary to carry out this subsection first

take effect;

(B) contains a complete and detailed inventory of all pre-Act endangered species parts

for which the applicant seeks exemption;

any endangered species part or product claimed by the applicant to be a pre-Act endangered

species part is in fact such a part; and

(D) contains such other information as the Secretary deems necessary and appropriate to

carry out the purposes of this subsection.

(4) If the Secretary approves any application for exemption made under this subsection,

he shall issue to the applicant a certificate of exemption which shall specify-

(A) any prohibition in section 9(a) of this Act which is exempted;

(B) the pre-Act endangered species parts to which the exemption applies;

under this subsection shall have force and effect after the close of the three-year period

beginning on the date of issuance of the certificate unless such exemption is renewed under

paragraph (8); and

(D) any term or condition prescribed pursuant to paragraph (5)(A) or (B), or both, which

the Secretary deems necessary or appropriate.

(5) The Secretary shall prescribe such regulations as he deems necessary and appropriate

to carry out the purposes of this subsection. Such regulations may set forth-

(A) terms and conditions which may be imposed on applicants for exemptions under this

subsection (including, but not limited to, requirements that applicants register inventories,

keep complete sales records, permit duly authorized agents of the Secretary to inspect such

inventories and records, and periodically file appropriate reports with the Secretary); and

(B) terms and conditions which may be imposed on any subsequent purchaser of any

pre-Act endangered species part covered by an exemption granted under this subsection; to

insure that any such part so exempted is adequately accounted for and not disposed of

contrary to the provisions of this Act. No regulation prescribed by the Secretary to carry

out the purposes of this subsection shall be subject to section 4(f)(2)(A)(i) of this Act.

(6)(A) Any contract for the sale of pre-Act endangered species parts which is entered into

by the Administrator of General Services prior to the effective date of this subsection and

pursuant to the notice published in the Federal Register on January 9, 1973, shall not be

rendered invalid by virtue of the fact that fulfillment of such contract may be prohibited

under section 9(a)(1)(F).

(B) In the event that this paragraph is held invalid, the validity of the remainder of the

Act, including the remainder of this subsection, shall not be affected.

(7) Nothing in this subsection shall be construed to-

(A) exonerate any person from any act committed in violation of paragraphs (1)(A),

(1)(E), or (1)(F) of section 9(a) prior to the date of enactment of this subsection; or

(B) immunize any person from prosecution for any such act.

(8)(A)(i) Any valid certificate of exemption which was renewed after October 13, 1982,

and was in effect on March 31, 1988, shall be deemed to be renewed for a 6-month period

beginning on the date of enactment of the Endangered Species Act Amendments of 1988.

Any person holding such a certificate may apply to the Secretary for one additional renewal

of such certificate for a period not to exceed 5 years beginning on the date of such

enactment.

(B) If the Secretary approves any application for renewal of an exemption under this

paragraph, he shall issue to the applicant a certificate of renewal of such exemption which

shall provide that all terms, conditions, prohibitions, and other regulations made applicable

by the previous certificate shall remain in effect during the period of the renewal.

force and effect after the expiration date of the certificate of renewal of such exemption

issued under this paragraph.

(D) No person may, after January 31, 1984, sell or offer for sale in interstate or foreign

commerce, any pre-Act finished scrimshaw product unless such person holds a valid

certificate of exemption issued by the Secretary under this subsection, and unless such

product or the raw material for such product was held by such person on October 13,

1982.

(g) In connection with any action alleging a violation of section 9, any person claiming the

benefit of any exemption or permit under this Act shall have the burden of proving that the

exemption or permit is applicable, has been granted, and was valid and in force at the time

of the alleged violation.

(h) CERTAIN ANTIQUE ARTICLES.-

(1) Sections 4(d), 9(a), and 9(c) do not apply to any article which-

(A) is not less than 100 years of age;

(B) is composed in whole or in part of any endangered species or threatened species

listed under section 4;

date of the enactment of this Act; and

(D) is entered at a port designated under paragraph (3).

(2) Any person who wishes to import an article under the exception provided by this

subsection shall submit to the customs officer concerned at the time of entry of the article

such documentation as the Secretary of the Treasury, after consultation with the Secretary

of the Interior, shall by regulation require as being necessary to establish that the article

meets the requirements set forth in paragraph (1) (A), (B), and (C).

(3) The Secretary of the Treasury, after consultation with the Secretary of the Interior,

shall designate one port within each customs region at which articles described in paragraph

(1) (A), (B), and (C) must be entered into the customs territory of the United States.

(4) Any person who imported, after December 27, 1973, and on or before the date of the

enactment of the Endangered Species Act Amendments of 1978, any article described in

paragraph (1) which-

(A) was not repaired or modified after the date of importation with any part of any

endangered species or threatened species listed under section 4;

(B) was forfeited to the United States before such date of the enactment, or is subject to

forfeiture to the United States on such date of enactment, pursuant to the assessment of a

civil penalty under section 11; and

close of the one-year period beginning on such date of enactment make application to the

Secretary for return of the article. Application shall be made in such form and manner,

and contain such documentation, as the Secretary prescribes. If on the basis of any such

application which is timely filed, the Secretary is satisfied that the requirements of this

paragraph are met with respect to the article concerned, the Secretary shall return the arti-

cle to the applicant and the importation of such article shall, on and after the date of return,

be deemed to be a lawful importation under this Act.

(i) NONCOMMERCIAL TRANSSHIPMENTS.-Any importation into the United States of

fish or wildlife shall, if-

(1) such fish or wildlife was lawfully taken and exported from the country of origin and

country of reexport, if any;

(2) such fish or wildlife is in transit or transshipment through any place subject to the

jurisdiction of the United States enroute to a country where such fish or wildlife may be

lawfully imported and received;

(3) the exporter or owner of such fish or wildlife gave explicit instructions not to ship

such fish or wildlife through any place subject to the jurisdiction of the United States, or

did all that could have reasonably been done to prevent transshipment, and the

circumstances leading to the transshipment were beyond the exporter's or owner's control;

(4) the applicable requirements of the Convention have been satisfied; and

(5) such importation is not made in the course of a commercial activity,

be an importation not in violation of any provision of this Act or any regulation issued

pursuant to this Act while such fish or wildlife remains in the control of the United States

Customs Service.

(j) EXPERIMENTAL POPULATIONS.-

(1) For purposes of this subsection, the term "experimental population" means any

population (including any offspring arising solely therefrom) authorized by the Secretary

for release under paragraph (2), but only when, and at such times as, the population is

wholly separate geographically from nonexperimental populations of the same species.

(2)(A) The Secretary may authorize the release (and the related transportation) of any

population (including eggs, propagules, or individuals) of an endangered species or a

threatened species outside the current range of such species if the Secretary determines that

such release will further the conservation of such species.

(B) Before authorizing the release of any population under subparagraph (A), the

Secretary shall by regulation identify the population and determine, on the basis of the best

available information, whether or not such population is essential to the continued existence

of an endangered species or a threatened species.

treated as a threatened species; except that-

(i) solely for purposes of section 7 (other than subsection (a)(1) thereof), an

experimental population determined under subparagraph (B) to be not essential to the

continued existence of a species shall be treated, except when it occurs in an area within

the National Wildlife Refuge System or the National Park System, as a species proposed to

be listed under section 4; and

(ii) critical habitat shall not be designated under this Act for any experimental

population determined under subparagraph (B) to be not essential to the continued existence

of a species.

(3) The Secretary, with respect to populations of endangered species or threatened species

that the Secretary authorized, before the date of the enactment of this subsection, for

release in geographical areas separate from the other populations of such species, shall de-

termine by regulation which of such populations are an experimental population for the

purposes of this subsection and whether or not each is essential to the continued existence

of an endangered species or a threatened species.

PENALTIES AND ENFORCEMENT

SEC. 11.

(a) CIVIL PENALTIES.-

(1) Any person who knowingly violates, and any person engaged in business as an

importer or exporter of fish, wildlife, or plants who violates, any provision of this Act, or

any provision of any permit or certificate issued hereunder, or of any regulation issued in

order to implement subsection (a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A), (B), (C), or

(D), (c), (d) (other than regulation relating to recordkeeping or filing of reports), (f), or (g)

of section 9 of this Act, may be assessed a civil penalty by the Secretary of not more than

$25,000 for each violation. Any person who knowingly violates, and any person engaged

in business as an importer or exporter of fish, wildlife, or plants who violates, any pro-

vision of any other regulation issued under this Act may be assessed a civil penalty by the

Secretary of not more than $12,000 for each such violation. Any person who otherwise

violates any provision of this Act, or any regulation, permit, or certificate issued

hereunder, may be assessed a civil penalty by the Secretary of not more than $500 for each

such violation. No penalty may be assessed under this subsection unless such person is

given notice and opportunity for a hearing with respect to such violation. Each violation

shall be a separate offense. Any such civil penalty may be remitted or mitigated by the

Secretary. Upon any failure to pay a penalty assessed under this subsection, the Secretary

may request the Attorney General to institute a civil action in a district court of the United

States for any district in which such person is found, resides, or transacts business to

collect the penalty and such court shall have jurisdiction to hear and decide any such

action. The court shall hear such action on the record made before the Secretary and shall

sustain his action if it is supported by substantial evidence on the record considered as a

whole.

(2) Hearings held during proceedings for the assessment of civil penalties by paragraph

(1) of this subsection shall be conducted in accordance with section 554 of title 5, United

States Code. The Secretary may issue subpoenas for the attendance and testimony of

witnesses and the production of relevant papers, books, and documents, and administer

oaths. Witnesses summoned shall be paid the same fees and mileage that are paid to

witnesses in the courts of the United States. In case of contumacy or refusal to obey a sub-

poena served upon any person pursuant to this paragraph, the district court of the United

States for any district in which such person is found or resides or transacts business, upon

application by the United States and after notice to such person, shall have jurisdiction to

issue an order requiring such person to appear and give testimony before the Secretary or

to appear and produce documents before the Secretary, or both, and any failure to obey

such order of the court may be punished by such court as a contempt thereof.

(3) Notwithstanding any other provision of this Act, no civil penalty shall be imposed if it

can be shown by a preponderance of the evidence that the defendant committed an act

based on a good faith belief that he was acting to protect himself or herself, a member of

his or her family, or any other individual from bodily harm, from any endangered or

threatened species.

(b) CRIMINAL VIOLATIONS.-

(1) Any person who knowingly violates any provision of this Act, of any permit or

certificate issued hereunder, or of any regulation issued in order to implement subsection

(a)(1)(A), (B), (C), (D), (E), or (F); (a)(2)(A), (B), (C), or (D), (c), (d) (other than a

regulation relating to recordkeeping, or filing of reports), (f), or (g) of section 9 of this Act

shall, upon conviction, be fined not more than $50,000 or imprisoned for not more than

one year, or both. Any person who knowingly violates any provision of any other

regulation issued under this Act shall, upon conviction, be fined not more than $25,000 or

imprisoned for not more than six months, or both.

(2) The head of any Federal agency which has issued a lease, license, permit, or other

agreement authorizing a person to import or export fish, wildlife, or plants, or to operate a

quarantine station for imported wildlife, or authorizing the use of Federal lands, including

grazing of domestic livestock, to any person who is convicted of a criminal violation of this

Act or any regulation, permit, or certificate issued hereunder may immediately modify,

suspend, or revoke each lease, license, permit, or other agreement. The Secretary shall

also suspend for a period of up to one year, or cancel, any Federal hunting or fishing

permits or stamps issued to any person who is convicted of a criminal violation of any

provision of this Act or any regulation, permit, or certificate issued hereunder. The United

States shall not be liable for the payments of any compensation, reimbursement, or

damages in connection with the modification, suspension, or revocation of any leases,

licenses permits stamps, or other agreements pursuant to this section.

(3) Notwithstanding any other provision of this Act, it shall be a defense to prosecution

under this subsection if the defendant committed the offense based on a good faith belief

that he was acting to protect himself or herself, a member of his or her family, or any

other individual, from bodily harm from any endangered or threatened species.

including the courts enumerated in section 460 of title 28, United States Code, shall have

jurisdiction over any actions arising under this Act. For the purpose of this Act, American

Samoa shall be included within the judicial district of the District Court of the United

States for the District of Hawaii.

(d) REWARDS AND CERTAIN INCIDENTAL EXPENSES.-The Secretary or the

Secretary of the Treasury shall pay, from sums received as penalties, fines, or forfeitures

of property for any violation of this chapter or any regulation issued hereunder

(1) a reward to any person who furnishes information which leads to an arrest, a criminal

conviction, civil penalty assessment, or forfeiture of property for any violation of this

chapter or any regulation issued hereunder, and

(2) the reasonable and necessary costs incurred by any person in providing temporary

care for any fish, wildlife, or plant pending the disposition of any civil or criminal

proceeding alleging a violation of this chapter with respect to that fish, wildlife, or plant.

The amount of the reward, if any, is to be designated by the Secretary or the Secretary of

the Treasury, as appropriate. Any officer or employee of the United States or any State or

local government who furnishes information or renders service in the performance of his

official duties is ineligible for payment under this subsection. Whenever the balance of

sums received under this section and section 6(d) of the Act of November 16, 1981 (16

U.S.C. 3375(d)) as penalties or fines, or from forfeitures of property, exceed $500,000,

the Secretary of the Treasury shall deposit an amount equal to such excess balance in the

cooperative endangered species conservation fund established under section 6(i) of this Act.

(e) ENFORCEMENT.-

(1) The provisions of this Act and any regulations or permits issued pursuant thereto shall

be enforced by the Secretary, the Secretary of the Treasury, or the Secretary of the

Department in which the Coast Guard is operating, or all such Secretaries. Each such

Secretary may utilize by agreement, with or without reimbursement, the personnel,

services, and facilities of any other Federal agency or any State agency for purposes of en-

forcing this Act.

(2) The judges of the district courts of the United States and the United States magistrates

may within their respective jurisdictions, upon proper oath or affirmation showing probable

cause, issue such warrants or other process as may be required for enforcement of this Act

and any regulation issued thereunder.

(3) Any person authorized by the Secretary, the Secretary of the Treasury, or the

Secretary of the Department in which the Coast Guard is operating, to enforce this Act

may detain for inspection and inspect any package, crate, or other container, including its

contents, and all accompanying documents, upon importation or exportation. Such persons

may make arrests without a warrant for any violation of this Act if he has reasonable

grounds to believe that the person to be arrested is committing the violation in his presence

or view and may execute and serve any arrest warrant, search warrant, or other warrant or

civil or criminal process issued by any officer or court of competent jurisdiction for

enforcement of this Act. Such person so authorized may search and seize, with or without

a warrant, as authorized by law. Any fish, wildlife, property, or item so seized shall be

held by any person authorized by the Secretary, the Secretary of the Treasury, or the

Secretary of the Department in which the Coast Guard is operating pending disposition of

civil or criminal proceedings, or the institution of an action in rem for forfeiture of such

fish, wildlife, property, or item pursuant to paragraph (4) of the subsection; except that the

Secretary may, in lieu of holding such fish, wildlife, property, or item, permit the owner

or consignee to post a bond or other surety satisfactory to the Secretary, but upon forfeiture

of any such property to the United States, or the abandonment or waiver of any claim to

any such property, it shall be disposed of (other than by sale to the general public) by the

Secretary in such a manner, consistent with the purposes of this Act, as the Secretary shall

by regulation prescribe.

(4)(A) All fish or wildlife or plants taken, possessed, sold, purchased, offered for sale or

purchase, transported, delivered, received, carried, shipped, exported, or imported contrary

to the provisions of this Act, any regulation made pursuant thereto, or any permit or

certificate issued hereunder shall be subject to forfeiture to the United States.

(B) All guns, traps, nets, and other equipment, vessels, vehicles, aircraft, and other

means of transportation used to aid the taking, possessing, selling, purchasing, offering for

sale or purchase, transporting, delivering, receiving, carrying, shipping, exporting, or im-

porting of any fish or wildlife or plants in violation of this Act, any regulation made

pursuant thereto, or any permit or certificate issued thereunder shall be subject to forfeiture

to the United States upon conviction of a criminal violation pursuant to section 11(b)(1) of

this Act.

(5) All provisions of law relating to the seizure, forfeiture, and condemnation of a vessel

for violation of the customs laws, the disposition of such vessel or the proceeds from the

sale thereof, and the remission or mitigation of such forfeiture, shall apply to the seizures

and forfeitures incurred, or alleged to have been incurred, under the provisions of this Act,

insofar as such provisions of law are applicable and not inconsistent with the provisions of

this Act; except that all powers, rights, and duties conferred or imposed by the customs

laws upon any officer or employee of the Treasury Department shall, for the purposes of

this Act, be exercised or performed by the Secretary or by such persons as he may

designate.

(6) The Attorney General of the United States may seek to enjoin any person who is

alleged to be in violation of any provision of this Act or regulation issued under authority

thereof.

(f) REGULATIONS.-The Secretary, the Secretary of the Treasury, and the Secretary of

the Department in which the Coast Guard is operating, are authorized to promulgate such

regulations as may be appropriate to enforce this Act, and charge reasonable fees for ex-

penses to the Government connected with permits or certificates authorized by this Act

including processing applications and reasonable inspections, and with the transfer, board,

handling, or storage of fish or wildlife or plants and evidentiary items seized and forfeited

under this Act. All such fees collected pursuant to this subsection shall be deposited in the

Treasury to the credit of the appropriation which is current and chargeable for the cost of

furnishing the services. Appropriated funds may be expended pending reimbursement from

parties in interest.

(g) CITIZEN SUITS.-

(1) Except as provided in paragraph (2) of this subsection any person may commence a

civil suit on his own behalf-

(A) to enjoin any person, including the United States and any other governmental

instrumentality or agency (to the extent permitted by the eleventh amendment to the

Constitution), who is alleged to be in violation of any provision of this Act or regulation

issued under the authority thereof; or

(B) to compel the Secretary to apply, pursuant to section 6(g)(2)(B)(ii) of this Act, the

prohibitions set forth in or authorized pursuant to section 4(d) or section 9(a)(1)(B) of this

Act with respect to the taking of any resident endangered species or threatened species

within any State; or

act or duty under section 4 which is not discretionary with the Secretary.

The district courts shall have jurisdiction, without regard to the amount in controversy or

the citizenship of the parties, to enforce any such provision or regulation or to order the

Secretary to perform such act or duty, as the case may be. In any civil suit commenced

under subparagraph (B) the district court shall compel the Secretary to apply the prohibition

sought if the court finds that the allegation that an emergency exists is supported by

substantial evidence.

(2)(A) No action may be commenced under subparagraph (1)(A) of this section-

(i) prior to sixty days after written notice of the violation has been given to the

Secretary, and to any alleged violator of any such provision or regulation;

(ii) if the Secretary has commenced action to impose a penalty pursuant to subsection

(a) of this section; or

(iii) if the United States has commenced and is diligently prosecuting a criminal action

in a court of the United States or a State to redress a violation of any such provision or

regulation.

(B) No action may be commenced under subparagraph (1)(B) of this section-

(i) prior to sixty days after written notice has been given to the Secretary setting forth

the reasons why an emergency is thought to exist with respect to an endangered species or

a threatened species in the State concerned; or

(ii) if the Secretary has commenced and is diligently prosecuting action under section

6(g)(2)(B)(ii) of this Act to determine whether any such emergency exists.

sixty days after written notice has been given to the Secretary; except that such action may

be brought immediately after such notification in the case of an action under this section

respecting an emergency posing a significant risk to the wellbeing of any species of fish or

wildlife or plants.

(3)(A) Any suit under this subsection may be brought in the judicial district in which the

violation occurs.

(B) In any such suit under this subsection in which the United States is not a party, the

Attorney General, at the request of the Secretary, may intervene on behalf of the United

States as a matter of right.

(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of

this subsection, may award costs of litigation (including reasonable attorney and expert

witness fees) to any party, whenever the court determines such award is appropriate.

(5) The injunctive relief provided by this subsection shall not restrict any right which any

person (or class of persons) may have under any statute or common law to seek

enforcement of any standard or limitation or to seek any other relief (including relief

against the Secretary or a State agency).

(h) COORDINATION WITH OTHER LAWS.-The Secretary of Agriculture and the

Secretary shall provide for appropriate coordination of the administration of this Act with

the administration of the animal quarantine laws (21 U.S.C. 101-105, 111-135b, and

612-614) and section 306 of the Tariff Act of 1930 (19 U.S.C. 1306). Nothing in this Act

or any amendment made by this Act shall be construed as superseding or limiting in any

manner the functions of the Secretary of Agriculture under any other law relating to

prohibited or restricted importations or possession of animals and other articles and no

proceeding or determination under this Act shall preclude any proceeding or be considered

determinative of any issue of fact or law in any proceeding under any Act administered by

the Secretary of Agriculture. Nothing in this Act shall be construed as superseding or

limiting in any manner the functions and responsibilities of the Secretary of the Treasury

under the Tariff Act of 1930, including, without limitation, section 527 of that Act (19

U.S.C. 1527), relating to the importation of wildlife taken, killed, possessed, or exported

to the United States in violation of the laws or regulations of a foreign country.

ENDANGERED PLANTS

SEC. 12.

The Secretary of the Smithsonian Institution, in conjunction with other affected

agencies, is authorized and directed to review (1) species of plants which are now or may

become endangered, or threatened and (2) methods of adequately conserving such species,

and to report to Congress, within one year after the date of the enactment of this Act, the

results of such review including recommendations for new legislation or the amendment of

existing legislation.

CONFORMING AMENDMENTS

SEC. 13.

(a) Subsection 4(c) of the Act of October 15, 1966 (80 Stat. 928, 16 U.S.C. 668dd(c)), is

further amended by revising the second sentence thereof to read as follows: "With the

exception of endangered species and threatened species listed by the Secretary pursuant to

section 4 of the Endangered Species Act of 1973 in States wherein a cooperative agreement

does not exist pursuant to section 6(c) of that Act, nothing in this Act shall be construed to

authorize the Secretary to control or regulate hunting or fishing of resident fish and wildlife

on lands not within the system."

(b) Subsection 10(a) of the Migratory Bird Conservation Act (45 Stat. 1224, 16 U.S.C.

715i(a)) and subsection 401(a) of the Act of June 15, 1935 (49 Stat. 383, 16 U.S.C.

715s(a)) are each amended by striking out "threatened with extinction," and inserting in

lieu thereof the following: "listed pursuant to section 4 of the Endangered Species Act of

1973 as endangered species or threatened species."

4601-9(a)(1)) is amended by striking out:

"THREATENED SPECIES.-For any national area which may be authorized for the

preservation of species of fish or wildlife that are threatened with extinction." and inserting

in lieu thereof the following:

"ENDANGERED SPECIES AND THREATENED SPECIES.-For lands, waters, or

interests therein, the acquisition of which is authorized under section 5(a) of the

Endangered Species Act of 1973, needed for the purpose of conserving endangered or

threatened species of fish or wildlife or plants."

(d) The first sentence of section 2 of the Act of September 28, 1962, as amended (76 Stat.

653, 16 U.S.C. 460k-1), is amended to read as follows:

"The Secretary is authorized to acquire areas of land, or interests therein, which are

suitable for-

"(1) incidental fish and wildlife-oriented recreational development;

"(2) the protection of natural resources;

"(3) the conservation of endangered species or threatened species listed by the

Secretary pursuant to section 4 of the Endangered Species Act of 1973; or

"(4) carrying out two or more of the purposes set forth in paragraphs (1) through (3)

of this section, and are adjacent to, or within, the said conservation areas, except that the

acquisition of any land or interest therein pursuant to this section shall be accomplished

only with such funds as may be appropriated therefor by the Congress or donated for such

purposes, but such property shall not be acquired with funds obtained from the sale of

Federal migratory bird hunting stamps."

(e) The Marine Mammal Protection Act of 1972 (16 U.S.C. 13611407) is amended-

(1) by striking out "Endangered Species Conservation Act of 1969" in section 3(l)(B)

thereof and inserting in lieu thereof the following: "Endangered Species Act of 1973";

(2) by striking out "pursuant to the Endangered Species Conservation Act of 1969" in

section 101(a)(3)(B) thereof and inserting in lieu thereof the following: "or threatened

species pursuant to the Endangered Species Act of 1973";

(3) by striking out "endangered under the Endangered Species Conservation Act of

1969" in section 102(b)(3) thereof and inserting in lieu thereof the following: "an

endangered species or threatened species pursuant to the Endangered Species Act of 1973";

and

(4) by striking out "of the interior and revisions of the Endangered Species List,

authorized by the Endangered Species Conservation Act of 1969," in section 202(a)(6)

thereof and inserting in lieu thereof the following: "such revisions of the endangered

species list and threatened species list published pursuant to section 4(c)(1) of the

Endangered Species Act of 1973".-

(f) Section 2(1) of the Federal Environmental Pesticide Control Act of 1972 (Public Law

92-516) is amended by striking out the words "by the Secretary of the Interior under Public

Law 91-135" and inserting in lieu thereof the words "or threatened by the Secretary

pursuant to the Endangered Species Act of 1973".

REPEALER

SEC. 14.

The Endangered Species Conservation Act of 1969 (sections 1 through 3 of the

Act of October 15, 1966, and sections 1 through 6 of the Act of December 5, 1969; 16

U.S.C. 668aa-668cc-6), is repealed.

AUTHORIZATION OF APPROPRIATIONS

SEC. 15.

(a) IN GENERAL.-Except as provided in subsections (b), (c), and (d), there are

authorized to be appropriated-

(1) not to exceed $35,000,000 for fiscal year 1988, $36,500,000 for fiscal year 1989,

$38,000,000 for fiscal year 1990, $39,500,000 for fiscal year 1991, and $41,500,000 for

fiscal year 1992 to enable the Department of the Interior to carry out such functions and

responsibilities as it may have been given under this Act;

(2) not to exceed $5,750,000 for fiscal year 1988, $6,250,000 for each of fiscal years

1989 and 1990, and $6,750,000 for each of fiscal years 1991 and 1992 to enable the

Department of Commerce to carry out such functions and responsibilities as it may have

been given under this Act; and

(3) not to exceed $2,200,000 for fiscal year 1988, $2,400,000 for each of fiscal years

1989 and 1990, and $2,600,000 for each of fiscal years 1991 and 1992, to enable the

Department of Agriculture to carry out its functions and responsibilities with respect to the

enforcement of this Act and the Convention which pertain to the importation or exportation

of plants.

(b) EXEMPTIONS FROM ACT.-There are authorized to be appropriated to the Secretary

to assist him and the Endangered Species Committee in carrying out their functions under

section 7 (e), (g) and (h) not to exceed $600,000 for each for fiscal years 1988, 1989,

1990, 1991, and 1992.

Department of the Interior for purposes of carrying out section 8A(e) not to exceed

$400,000 for each of fiscal years 1988, 1989, and 1990, and $500,000 for each of fiscal

years 1991 and 1992, and such sums shall remain available until expended.

EFFECTIVE DATE

SEC. 16.

This Act shall take effect on the date of its enactment.

MARINE MAMMAL PROTECTION ACT OF 1972

SEC. 17.

Except as otherwise provided in this Act, no provision of this Act shall take

precedence over any more restrictive conflicting provision of the Marine Mammal

Protection Act of 1972.

ANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE

SEC. 18.

On or before January 15, 1990, and each January 15 thereafter, the Secretary of

the Interior, acting through the Fish and Wildlife Service, shall submit to the Congress an

annual report covering the preceding fiscal year which shall contain-

(1) an accounting on a species by species basis of all reasonably identifiable Federal

expenditures made primarily for the conservation of endangered or threatened species

pursuant to this Act; and

(2) an accounting on a species by species basis for all reasonably identifiable

expenditures made primarily for the conservation of endangered or threatened species

pursuant to this Act by states receiving grants under section 6.

Endangered Species Act of 1973

ESA SECTION HEADINGS

FINDINGS, PURPOSES, AND POLICY

SEC. 2.

DEFINITIONS

SEC. 3.

DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

Sec. 4.

LAND ACQUISITION

SEC. 5.

COOPERATION WITH THE STATES

SEC. 6.

INTERAGENCY COOPERATION

SEC. 7.

INTERNATIONAL COOPERATION

SEC. 8.

CONVENTION IMPLEMENTATION

SEC. 8A.

PROHIBITED ACTS

SEC. 9.

EXCEPTIONS

SEC. 10.

PENALTIES AND ENFORCEMENT

SEC. 11.

ENDANGERED PLANTS

SEC. 12.

CONFORMING AMENDMENTS

SEC. 13.

REPEALER

SEC. 14.

AUTHORIZATION OF APPROPRIATIONS

SEC. 15.

EFFECTIVE DATE

SEC. 16.

MARINE MAMMAL PROTECTION ACT OF 1972

SEC. 17.

ANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE

SEC. 18.

DETERMINATION OF ENDANGERED SPECIES AND
THREATENED SPECIES